In a judgment rendered June 8, the Supreme Court of Canada has reversed itself and recognized that freedom of association includes the right to collective bargaining.
by Duncan Cameron
Fundamental labour rights, pursued historically, and recognized under international conventions, must be respected in Canada, according to the highest court in the land. In a judgment rendered June 8, the Supreme Court of Canada has reversed itself and recognized that freedom of association includes the right to collective bargaining. Collective bargaining complements and promotes the values expressed in the Canadian Charter of Rights and Freedoms according to this major judgment recognizing the role of trade unions cannot be repressed “in a free and democratic society.”
The Supreme Court decision struck down key provisions of Bill 29, introduced five years ago by the Gordon Campbell Liberals as part of a plan to contract out and privatize B.C. health services. The decision not only overturns lower court judgments, more importantly it rewrites its own Supreme Court jurisprudence on key issues of labour rights.
The Canadian labour movement can now look forward to a brighter future in pursuing collective bargaining rights on fundamental workplace issues; this landmark Supreme Court reinterpretation recognizing labour rights can be drawn upon to bring employers to the negotiating table. The Court states that collective bargaining is necessary for workers “to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.”
Section 2 of the Canadian Charter of Rights and Freedoms is explicit. “Everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association.”
However, in an important trilogy of labour cases decided by the Supreme Court in 1987, five years after the adoption of the Charter, freedom of association was severely limited. Justices argued that through association, individuals could protect their rights as individuals, but did not gain any additional rights i.e. the right to bargain collectively.
Choosing its words carefully, last week the Surpreme Court overruled the labour trilogy exclusion of collective bargaining as a necessary part of freedom of association: “None of the reasons provided by the majorities in those cases survive scrutiny.”
The justices cite the testimony of an acting Liberal minister of justice on the impact of the then-proposed Charter who said the right of association included the right to collective bargaining and that is was not made explicit in the draft Charter for fear of weakening other rights of association such as those for community groups.
The majority decision, six justices concurring, and one partially dissenting, provides an historical overview of the development of industrial relations in Canada that draws upon the work of labour historians, labour law specialists and government commissions to outline the context for the explicit recognition by the Supreme Court of labour rights to collective bargaining as a fundamental freedom.
While the Hospital Employees' Union, and the British Columbia Government Employees Union can celebrate a victory for all Canadian workers, the (mostly) women who lost salaries, benefits, severance pay and jobs through layoffs were not offered remedies by the court decision. Instead the B.C. government has one year to make illegal sections of its legislation comply with the court ruling.
This ruling has a legacy: it will imprint on the legal system at every level and each jurisdiction the recognition of labour rights as fundamental rights. According to the court: “Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underlie the Charter … All of these values are complemented and indeed, promoted, by the protection of collective bargaining in s. 2(d) of the Charter.”
Contrary to the charge of judicial activism leveled by the B.C. government against the Supreme Court, its judgment creates no new rights. In its ruling, the court points to collective bargaining as predating the establishment of particular labour relations regimes in Canada, and existing well before the Charter recognized the fundamental right to association.
The court acknowledges what was won through strikes, and related struggles — a legally enforceable right for unions to bargain collectively with private employers. The court cites legal scholars Judy Fudge and Harry Glasbeek: the union right to bargain was recognized by the federal government in wartime, by order-in-council PC 1003, and subsequently incorporated into provincial legislation. The Court refers to an article by CUPE research officer John Calvert to illustrate that only in the 1970s were collective bargaining rights extended to cover public sector workers.
The Court notes that though labour organizations first appear in Canada at the end of the 18th century: “From the beginning, the law was used as a tool to limit workers’ rights to unionize.” This judgment recognizes that labour rights are part of the values protected by the Charter; that Canada has signed international conventions and has thus recognized labour rights under international law; that historically collective bargaining is integral to the right to association; and, finally, that the Supreme Court itself was wrong not to admit that the guarantee of freedom of association extends to collective bargaining.
Section one of the Charter: “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Governments wanting to deny labour rights have argued they could be reasonably limited under the law. Since the Supreme Court decision recognizes labour rights as a part of a free and democratic society, from now on restrictions on collective bargaining on workplace issues will be most difficult for lower courts to justify.
Duncan Cameron is associate publisher of rabble.ca. He writes from Vancouver.
Full text of the Supreme Court of Canada's decision in the Health Services case: http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html