|
Sometimes it is good to eat crow – if it comes with the right sauce. In its June 8, 2007 decision, Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, the Supreme Court of Canada ("SCC") concluded that “the holdings in the Alberta Reference and PIPSC excluding collective bargaining from the scope of s. 2(d) [of the Charter] can no longer stand” (para 35).
The Court overruled twenty years of Charter jurisprudence in the context of legislation enacted by the Campbell government in British Columbia, which was elected by an overwhelming majority (winning 77 of 79 seats) in 2001. According to the government, the 2002 legislation, known as Bill 29, was a crucial response to a pressing provincial health care crisis. Given the Court’s concern both for the state of Canada’s system of health care, as evinced in Chaoulli v. Quebec (AG), [2005] 1 SCR 791, and its deference to governments’ pleas of fiscal crisis, as manifested in Newfoundland (Treasury Board) v. NAPE, [2004] 3 SCR 381, I had predicted that the constitutional challenge to Bill 29, which vitiated key elements of the non-clinical health care workers collective agreements, would not be successful. Despite the fact that in Dunmore v. Ontario (AG), [2001] 3 SCR 1016 [Dunmore], which involved the exclusion of agricultural workers from Ontario’s labour relations legislation, the Supreme Court had opened the constitutional door a crack in order to provide some constitutional protection for the freedom of workers and unions to engage in collective activities, I predicted that an attempt to widen that space in the health sector context would provoke the Court to slam the constitutional door shut. I was wrong.
The decision is an important symbolic and moral victory both for the British Columbia Hospital Employees’ Union, which represented the thousands of mostly women workers who lost their jobs and saw their wages drop precipitously when their collective agreements were torn up, and for the Canadian labour movement in general, which has been on the defensive for the past twenty-five years. The failure of the Supreme Court to interpret the guarantee of freedom of association in the Charter to include collective bargaining had been taken as a signal by governments across the country that they could ride roughshod over workers’ hard fought for rights. The Campbell government’s high-handed treatment of the non-clinical health care workers epitomized governments’ cavalier attitude to public sector workers and their unions. As the Supreme Court of Canada emphasized, the British Columbia government introduced Bill 29 without consulting the union representing the thousands of workers who would be detrimentally affected by the legislation, and it used its majority to pass the legislation in a scant three days. After the Court’s decision in the BC case, at a minimum, governments will have to consider workers’ rights and to consult with their unions before introducing draconian legislation. While the Court is clear that its decision protects the process of collective bargaining, and not the substantive outcomes embodied in collective agreements, the emphasis on the government’s duty to bargain in good faith fosters democratic deliberation, at the expense of an instinctive vilification of public sector workers.
However, what the decision means in concrete terms is an open question. In the particular case, it is unclear what the remedy will be since all the Supreme Court did was suspend the declaration of the legislation’s invalidity for one year. In Dunmore, a similar remedy resulted in a parsimonious response by the Ontario government, which simply enacted legislation requiring employers in the agricultural sector not to discriminate against employees who formed or joined employee associations and to accept representations made by employee associations. Not surprisingly, this response was challenged as unconstitutional (and unsuccessfully so at the first level) by the union seeking to represent agricultural workers. Thus, the extent to, and ways in, which the Campbell government will address the plight of the thousands of hospital workers who lost their jobs, accrued seniority rights, and thousands of dollars in wages is not clear.
On a more general level, the contour of the right to collective bargaining is vague. According to the Court, the right is a procedural one which is embodied by the concept of the duty to bargain in good faith – a notoriously open-textured duty. However, the obligation on the state to bargain in good faith is not unlimited. To constitute a violation of the right to collectively bargain, the state’s interference with the general process (and not a particular model of labour relations nor a specific bargaining method) must be substantial. According to the Court, substantial interference is to be assessed on two bases, both of which are essential:
- the importance of the matter affected to the process of collective bargaining, and
- the manner in which the measure impacts on the collective right to good faith negotiation and consultation.
Moreover, it is an open question as to whether collective bargaining can be limited to the duty to bargain in good faith. Grounding its decision in international law, specifically International Labour Organization and United Nations Conventions that Canada has ratified, the Supreme Court of Canada has opened the door to the question of whether freedom of association also includes the right to strike. It is in this context that the s.1 analysis may play a more prominent role, as it did in the dissenting judgment of Deschamps J.
Given my track record, I will demure from making any further predictions of what the Court will do. What the Court has done is constitutionalize the key features of industrial pluralism – a system of collective bargaining that originated with the Wagner Act in 1935 and was adapted for Canada with the Wartime Labour Relations Regulations Act (PC 1003) in 1944. That system was designed for the post-war economy, and even at it apogee covered less than half of the working population in Canada. Since the early 1980s, at the very time the Charter was entrenched, this system has proven to be less effective; the wages of unionized workers have stagnated and union density has declined. While it is heartening for people who are concerned with the dignity of workers that the Supreme Court has elevated collective bargaining to a constitutional right, it is unlikely that defensive battles fought in courts can turn the economic and political tide that has undermined the basis for transforming these rights into job security and improved wages for working people.
3 Comments
In her article on the Supreme Court of Canada's decision in Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, Judy Fudge limits her analysis to the impact on unions. In Canada unions are creatures of statute. It seems to me that if the Court has convened a charter right to collective bargaining it supercedes statute rights and must surely apply to all entities in the country whether statute-created unions or not. That right must also extend to any employment group engaged in collective bargaining or attempting to do so. At present that right would surely include various medical associations across the country and other associations such as the one i represent at UBC (AAPS) which is not certified under the labour code but which has for 12 years through 4 collective agreements bargained collectively with our employer. (There is a similar entity at SFU)
Those cited above are existing collective bargaining situations. Now what of possibly new situations. I give you three possibilities:
1. The RCMP Officers Association which has to date been prevented by statute from bargaining collectively.
2. A possible association representing personnel serving in our armed forces.
3. Managers who heretofore have been excluded by statute from bargaining collectively in most jurisdictions in Canada. Can those statutes withstand the scrutiny of the Court's June 8th decision?
David Harvey, B.Comm., M.Ed., CHRP
Executive Director
The Association of Administrative and Professional Staff (UBC)
Professor Fudge is right to be cautious. For by overturning not just one, but a handful of seminal decisions, the current bench has opened the door to the relitigation not only of seemingly settled issues, but also the contours of collective bargaining law itself - and area from which the courts have been systematically and intentionally excluded for 60 years (some would say: for good reason). Moreover, as someone who has tilled these fields as a professional neutral for 30 years, I am not sanguine about this court's ability to appreciate the polycentric nature of the system which they have now constitutionalized - which is to say, made subject to more explicit judicial regulation. For as Professor Fudge will know: much modern labour law has been designed to reverse the results when judges have made a mess of it, and the North American system, does not follow that of Europe. And in my view, it will not take long for wily litigants to realize that any number of legislative provisions governing the shape and practice of collective bargaining will now be open to scrutiny and must be justified on a section1 basis, through time consuming and expensive litigation (from bargaining unit design, to special bargaining structures in construction, to the way in which collectivities are assembled and polled to establish "collective bargaining", to a possible right of non-association), presided over by judges whose individual rights notions may not sit easily with the collectivist compromises that permeate collective bargaining. Nor does the Charter itself. The delay alone is worth its weight in gold, for those seeking to avoid or review established structures. So all that can be safely said, is that the decision is a wonderful gift for lawyers. So here's a challenge for labour law professors and students: take a walk through the provisions of any current collective bargaining statute, from the point of view of someone seeking to avoid collective bargaining, and see how many Charter arguments you can think up, to avoid the application of those provisions....at least until the court of appeal has had a chance to think about it, two years later.
Since the advent of our modern era of labour relations we have developed a professional language replete with concepts and notions that, in light of the Supreme Court’s BC Health Services decision, need to be reconsidered. Statements that were well understood within the Canadian context a month ago, now need to be reassessed against the broader global understanding of industrial relations whose principles the SCC used to assess the meaning of Freedom of Association in the Charter. Statements in the article by professor Fudge and by Mr. Harvey and Mr. MacDowell are illustrative.
Professor Fudge says that “What the Court has done is constitutionalize the key features of industrial pluralism – a system of collective bargaining that originated with the Wagner Act in 1935 and was adapted for Canada with the Wartime Labour Relations Regulations (PC 1003) in 1944.” But that is not what the Court has done. Instead the Court explicitly reached back prior to the establishment of the modern system and placed that system in international human rights perspective. It said quite clearly that, in its opinion, collective bargaining had been established as an essential aspect of Canadian society prior to the advent of the modern Wagner-Act Model system. It also drew on international jurisprudence to outline the key generic elements of collective bargaining: the right of all Canadians to organize themselves into independent organizations designed to pursue their interests; the right of those organizations to made demands on employers and the duty of employers to negotiate in good faith with such independent organizations. Because it was not asked to do so, the Court did not comment on the right to strike. But clearly that right is a keystone of the international jurisprudence on which the Court heavily relied. In short the system of collective bargaining that originated with the Wagner Act of 1935 is a subset of a larger conception of collective bargaining with which Canadians will now have to come to grips.
David Harvey’s comment is indicative of some aspects of the new thinking that is required. Prior to BC Health Services the employee association of which he is the executive director was almost certainly not considered by mainliners to be a “union.” As I pointed out in Labour Left Out: Canada’s Failure to Protect and Promote Collective Bargaining as a Human Right (Ottawa, Canadian Centre for Policy Alternatives, 2006) our practice of reserving the term trade union for employee organizations that have been state-certified offends a global labour movement norm that highly values independence from the state. In global perspective, as an independent employee association seeking to forward and defend the interests of its members, David Harvey’s AAPS is a trade union. As defined by the Court, the right to bargain collectively certainly does now extend beyond state-certified unions to his organization and others like it.
Harvey also suggests three situations, excluded from Wagner-Act style bargaining, where collective bargaining may come into play now. Viewed through the prism of the international jurisprudence, which the Court found to be a convincing interpretative source, some comment may be made on all three.
1. “The RCMP Officers Association which has to date been prevented by statute from bargaining collectively.”
From the Supreme Court’s internationally influenced perspective, RCMP officers have not been “prevented by statute from bargaining collectively.” Statute has established a representative scheme that, assessed against international standards, is a “company dominated” employee organization and thus not a legitimate trade union. On the other hand, RCMP officers in a few provinces have formed independent associations and through them have been lobbying for full statutory-protected bargaining rights. It now seems clear that public sector employers have a Charter duty to bargain in good faith and, if the Court continues to defer to the international jurisprudence, public sector workers have a constitutionally-protected right to strike. On the other hand the Court has made it clear that no group of employees have a right to any specific (e.g. Wagner-Act Model) bargaining regime. With regard to police there is a complication. According to the international norms, police and members of the armed forces are the only groups from whom the right to organize and bargain collective may be legitimately withheld. Nevertheless, police are accorded those rights in several nations including, with the glaring exception of the RCMP, Canada.
2. “A possible association representing personnel serving in our armed forces.”
According to the international standards army personnel are, along with police, employees whose right to bargain collectively may legitimately be withheld. However, some countries have, at their discretion, granted the right of members of the armed forces to organize and bargain collectively.
3. “Managers who heretofore have been excluded by statute from bargaining collectively in most jurisdictions in Canada. Can those statutes withstand the scrutiny of the Court’s June 8th decision?”
Again, from the Court’s perspective no group of employed people are entitled to any specific statutory regime. Managers, like other employees have a Charter right to organize, make demands and have their employers bargain with them in good faith. But the onus is on them to exercise those rights and only if they are unable effectively to do so because of the existence of obstructing legislation or the absence of facilitating legislation will they have a case for court action on their behalf. Ideally, if both parties conformed to the letter and spirit of the decision, managers would construct organizations with which they felt comfortable and their employers would recognize those organizations and negotiate mutually acceptable relationships without the need for legislation or additional court action.
And finally I would like to make a few comments on the post by Richard MacDowell and especially to his reference to the exclusion in Canada of the courts from labour relations. For many decades there has been a strong current within the Canadian industrial relations community (and especially among labour lawyers) that, because they have failed to fully understand the complexities of labour relations, the courts have historically “made a mess of it.” Be that as it may, with regard to labour rights, the world has changed a great deal in recent years. A strong global consensus, in which Canada participated and helped to advance, has emerged asserting the human rights character of a core set of labour rights that include the right to bargain collectively. With regard to the other core rights – freedom from forced labour, child labour and employment discrimination – Canada is a world leader. With regard to collective bargaining, however, we are a delinquent, our practices sadly out of line with global norms. Despite promises to advance it, the practice of collective bargaining has been receding. Despite repeated promises to respect them, offences against worker rights have become more overt, blatant and disrespectful of international norms. In BC Health Services, the Court in effect said that the situation has gone too far and must be turned around. Not only were the universally recognized human rights of Canadians being offended with impunity, but in addition our integrity and national honour are at stake. Whatever may be the historical judgement of its performance on labour issues, in this case, the Supreme Court courageously did the right thing in calling for a halt to the egregious human rights violating behaviour of our politicians.
Still, MacDowell is right in warning us against “wily litigants” intent on turning the decision to their own ends. The decision opens up the possibility of creating a fully human rights compliant system that enhances, in the Court’s language, human dignity, worker autonomy, equality and democracy. It would be a tragedy to see that vision slip away due to bad faith efforts to undermine it.