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Teacher Newsmagazine Volume 20, Number 2, October 2007

Supreme Court recognizes right to bargain

On June 8, 2007, the Supreme Court of Canada recognized a constitutional right to collective bargaining.

In 2001, the BC government passed a law that nullified a number of collective agreement provisions in the health care sector. As a result, negotiated protections against contracting out and layoffs, as well as bumping rights, became invalid. The law also preclude employers and unions from future bargaining on those issues.

A number of unions challenged the law, arguing that it violated the charter’s freedom of association guarantee. The Supreme Court agreed. In reaching this conclusion, the courts reversed its earlier decision, holding that "the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected."

The Court based it recognition of collective bargaining as a constitutional right on the following:

  1. An examination of Canadian labour history reveals that collective bargaining has long been recognized as a fundamental aspect of Canadian society.
  2. International law protects collective bargaining as part of freedom of association.
  3. The protection of bargaining under section 2(d) of the charter is consistent with the charter’s underlying values, including human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy.

The court stressed, however, that the right to bargain is not absolute. Section 2(d) of the charter protects only against "substantial interference" with associational activity, in that the intent of effect of the challenged legislation (or government activity) must "seriously undercut or undermine the activity of workers joining together to pursue common goals of negotiating workplace conditions and terms of employment with their employer that we call collective bargaining."

The court held that certain provisions of the challenged law created substantial interference with health care employees’ right to bargain. The court found that, by invalidating existing agreement, the law undermined the past bargaining processes that formed the basis for these agreements.

Further, by prohibiting provisions dealing with specified matters in future agreements, the law undermined future bargaining over these matters.

The court also considered that the nullified provisions were central to the freedom of association of workers, in that they related to "essential protections" such as employment security and seniority.

Finally, the court found that the government measures constituted a virtual denial of the right to a process of good faith bargaining and consultation.

The court also held that the law could not be upheld under section 1 of the charter as "a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society." The BC government failed to establish that the legislation "minimally impaired" the bargaining rights of employees.

As a result, the Supreme Court ruled that certain provisions of the challenged legislation were unconstitutional. However, it suspended its declaration for 13 months to allow the BC government to address the repercussions of its decision.

For more information on labour law issues, visit SGM’s web site at www.sgmlaw.com.

Charlene Wiseman practises labour law with Sack Goldblatt Mitchell in Toronto.


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