Collective bargaining is a right, top court rules [Canada]
Decision strikes down controversial B.C. legislation that had contracted out work, axing thousands of jobs
JUSTICE REPORTER: With a report from Canadian Press
June 9, 2007
The right to collective bargaining in the workplace is protected by the Charter of Rights, the Supreme Court of Canada ruled yesterday, in a landmark judgment that left the labour movement flabbergasted.
In a 6-1 ruling that served notice on governments that they cannot save money by arbitrarily choking off workers' rights, the majority struck down a controversial B.C. law that had contracted out work in the health-care and social-work sector, throwing thousands out of their jobs.
"The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work," Chief Justice Beverley McLachlin and Mr. Justice Louis LeBel wrote.
The court suspended the effect of its decision for one year to give the province time to pass acceptable legislation.
"This is huge; this is unbelievable," said B.C. lawyer Joseph Arvay, who represented a coalition of unions and individuals affected by the decision. "I'm too excited to talk like a normal human being. This is going to change the landscape for collective bargaining for every union across the country."
Mr. Arvay predicted legal challenges from groups who are not permitted to bargain collectively, such as agricultural workers and the RCMP. It is too early to know what recourse will be available to thousands of union members who lost their jobs as a result of the B.C. legislation that has been struck down, Mr. Arvay said.
"We have seen 20 years of governments running roughshod over collective bargaining rights," said Steven Barrett, a lawyer for the Canadian Labour Congress. "The court has recognized that without constitutional protection, governments are simply going to disrespect collective agreements."
But Ken Thornicroft, of the University of Victoria business department, said the ruling is "far from a complete victory" for the labour movement and may be interpreted by the courts more narrowly than union leaders are predicting.
For the B.C. government, Health Minister George Abbott, said: "This judgment is not appealable, hence we need to sort out how it is that we will reconcile public policy with the judgment that's been rendered by the Supreme Court."
Dr. Thornicroft noted that most of the legislation survived the Supreme Court challenge intact with the court finding that four of the five infringements the unions complained about were constitutionally justified.
"It may well be that this government will be able to meet its legislative objectives with, I would say, tweaking, rather than wholesale revision of their legislation," Dr. Thornicroft said.
In an extraordinary move, the court majority said it no longer had confidence in its previous rulings that had virtually extinguished any hope the labour movement had of using the Charter as a litigation tool.
"The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context," said the ruling, which was also signed by Mr. Justice Michel Bastarache, Mr. Justice Ian Binnie, Mr. Justice Morris Fish and Madam Justice Rosalie Abella.
The court's astonishing about-face ranks with its 2004 Chaouilli ruling in terms of its unexpectedness, coming from a bench that has carved out a reputation as conservative, pragmatic and uneasy about using the Charter of Rights to disturb the status quo. The Chaouilli decision, named after the doctor who initiated the case, struck down Quebec's ban on buying private insurance for medical services, saying it contradicted the provincial Charter of Rights.
Rather than being perceived as a startling reversal, however, the majority said that yesterday's decision "may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining."
Known as the Health and Social Services Delivery Improvement Act, the B.C. bill touched off a firestorm of protest by playing havoc with key rights that had been negotiated under collective agreements, including work transfers, contracting out, job security, layoffs and seniority.
The key to whether legislation can pass Charter muster in future will be whether it amounts to "substantial interference" with associational activity in the workplace, the majority said.
THE LABOUR TRILOGY
In the early years of Supreme Court jurisprudence under the Charter of Rights, the court dealt with several cases involving organized labour. Three particular cases emphasized the court's determination to prevent collective bargaining from being granted protection under the Charter:
Reference re Public Service Employee Relations Act (Alta.), 1987: "Freedom of association, however, does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. The group can exercise only the constitutional rights of its members on behalf of those members. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association."
PSAC V Canada, 1987: Per Beetz, Le Dain and La Forest JJ.: "For the reasons expressed by Le Dain J. in the Reference re Public Service Employee Relations Act (Alta.), , the guarantee of freedom of association in s.2(d) of the Canadian Charter of Rights and Freedoms does not include a guarantee of the right to bargain collectively and the right to strike. Accordingly, the Public Sector Compensation Restraint Act did not violate s. 2(d) of the Charter." From majority reasons of Mr. Justice Jean Beetz, Mr. Justice Gerald Le Dain and Mr. Justice Gérard La Forest.
RWDSU v. Saskatchewan: Per Beetz, Le Dain and La Forest JJ.: For the reasons expressed by Le Dain J. in the Reference re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313, the guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include a guarantee of the right to bargain collectively and the right to strike. Accordingly, The Dairy Workers (Maintenance of Operations) Act did not violate s. 2(d) of the Charter.
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