Eating Crow: the Emergence of a Charter Right for Workers and Unions to Engage in Collective Activities

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:

1. the importance of the matter affected to the process of collective bargaining, and
2. 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.