Giving Life to the ILO -Two Cheers for the SCC

• Author: KD Ewing and John Hendy, QC
• Pages: 286-317

286

CHAPTER ELEVEN

Giving Life to the ILO—

Two Cheers for the SCC

KD Ewing and John Hendy, QC*

I

Fraser is an important case, with a signif‌icance that extends well

beyond Canada’s long border. For those of us who work outside the

jurisdiction, the use of international human rights treaties by the

Supreme Court of Canada (SCC) in both Health Services and Fraser is

particularly interesting, not least because it ref‌lects developments

taking place in courts elsewhere in the world.1 One of the most sig-

nif‌icant examples was the recent decisions of the European Court of

Human Rights (ECtHR), which has for some time relied upon inter-

national human rights instruments (including International Labour

Organization (ILO) conventions) to give substance to the right to

freedom of association to be found in the European Convention on

Human Rights, Article 11. The parallels between the ECtHR and the

SCC are particularly signif‌icant in view of the fact that like the SCC,

the ECtHR had a major conversion, repudiating in 2008 a body of

learning that tended towards a narrow rather than an expansive

* The authors wish to thank Dr Alan Bogg, Hertford Col lege, Oxford, for his gener-

ous support in the preparation of this paper.

1 See Bakery, Confectionery, Manufacturing and Allied Workers’ Union v Wrigley Ltd,

[2007] eKLR (Kenya); Mkwezalamba v Malawi Posts Corporation [IRC 154/2001],

Makande v Malawi Telecommunications Ltd [IRC 81/2001] (Malawi); South African Po-

lice Service v Police and Prisons Civil Rights Union, [2011] ZACC 21 (RSA); and RMT v

Serco Ltd; ASLEF v London and Birmingham Railway Ltd, [2011] EWCA Civ 226; [2011]

ICR 848 (UK).

Giving Life to the ILO—Two Cheers for the SCC 287

reading of freedom of association guarantees than now is the case.2

There are, however, important differences in the way in which these

two courts now approach ILO standards, with the SCC content to in-

corporate the principles, and the ECtHR insisting that the principles

must be adopted as applied by the ILO supervisory bodies.

As contributors observing the Canadian scene from afar, it is

with some humility that we enter what has become a lively and some-

times testy debate about the Fraser decision and its implications. We

do feel, however, that there are important points to be made about

the role of ILO principles, conventions, and jurisprudence in the de-

cision of the SCC, and that some of the arguments that have been

made in Canada about the use made of this material by the SCC are

at best highly contentious. In our view, it was perfectly proper for

the SCC to rely on the ILO, the principles of which relating to col-

lective bargaining do impose obligations on Canada. Where the SCC

erred in our view, however, was in failing to make clear why it was

perfectly proper to rely on these, particularly in view of the fact that

Canada has not ratif‌ied a particular ILO Convention (Convention No

98). More importantly, however, having embraced ILO principles as a

source of Charter interpretation, the SCC also erred, in our view, by

embarking on a frolic of its own, and by failing to apply these prin-

ciples in accordance with the appropriate ILO jurisprudence.3

In this chapter, we consider the relevant ILO Conventions relat-

ing to collective bargaining and trace the approach of the Canadian

courts to international labour conventions, beginning not with the

famous labour conventions case of 1937,4 but with the rather less well

known decision of the Alberta Court of Queen’s Bench in 1981.5 We

consider how the approach of the Canadian courts to the importance

of ILO Conventions gradually evolved through the 1980s “Labour

2 Demir and Baycara v Turkey, [2008] ECHR 1345 [Demir and Baycara].

3 See especially Health Services and Support—Facilities Subsector Bargaining Assn v

British Columbia, 2007 SCC 27, [2007] 2 SCR 391 at para 92 [Health Services].

4 Canada (AG) v Ontario (AG), [1937] AC 32.

5 Re Alberta Union of Provincial Employees and Alberta (1980), 120 DLR (3d) 590 (Alta

QB) [AUPE]. For an excellent discussion of the international and domestic implica-

tions of this case, see Michael Bendel, “The International Protection of Trade Union

Rights: A Canadian Case Study” (1981) 31 Ottawa L Rev 169.

KD Ewing and John Hendy, QC288

Tri l og y, ”6 to the new trilogy of Dunmore,7 Health Services,8 and Fraser,9

and consider the claim that it was inappropriate for the SCC to rely

on Convention No 87 as an interpretive source for the proposition

that the Charter right to freedom of association includes a right to

bargain collectively. In addressing these matters, we also explain

why, in our view, the government of Canada is bound by member-

ship of the ILO to promote collective bargaining, and why, as a result,

the SCC was fully entitled to rely on ILO principles relating to col-

lective bargaining in construing the Charter. We also explain why

the SCC’s decision fails to implement these principles, and how this

failure could have been avoided if the decision had been more deeply

rooted in ILO standards.

II

The main international instruments dealing with collective bar-

gaining are ILO Convention Nos 98, 151, and 154. Convention No 98

is probably the most important international treaty dealing with col-

lective bargaining, providing that:

Measures appropriate to national conditions shall be taken, where neces-

sary, to encourage and promote the full development and utilisation of

machinery for voluntary negotiation between employers or employers’

organisations and workers’ organisations, with a view to the regulation of

terms and conditions of employment by means of collective agreements.10

The scope and content of these various measures have been deter-

mined by the supervisory bodies established by the ILO to super-

vise the application of international labour conventions, notably the

Committee of Experts on the Application of Conventions and Rec-

ommendations (CEACR) established for this purpose in 1926, and

the Freedom of Association Committee of the Governing Body (CFA),

established in 1951.11

6 Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 [Alberta Ref-

erence]; PSAC v Canada, [1987] 1 SCR 424; RWDSU v Saskatchewan, [1987] 1 SCR 460

[RWDSU ].

7 Dunmore v Ontario (AG), 2001 SCC 94, [2001] 3 SCR 1016 [Dunmore].

8 Health Services, above note 3.

9 Ontario (AG) v Fraser, 2011 SCC 20 [Fraser].

10 Right to Organise and Collective Bargaining Convention 1949, art 4 [Convention No 98].

11 For a good account, see Bendel, above note 5. The former is a body of eminent jur-

ists whose number in the past has included Earl Warren and Archibald Cox from

the United States, while the latter is a tripartite body ref‌lecting the traditional