One hundred and thirty-five years after Parliament, in 1872, ended the legal characterization of registered unions as illegal combinations in restraint of trade; sixty-nine years after the New Brunswick Legislature enacted the Labour Act as the forerunner of contemporary provincial collective bargaining legislation; and a scant thirty-five years after Canada ratified the ILO's Freedom of Association and Protection of the Right to Organise Convention, 1948, the Supreme Court of Canada released its reasons for decision in Health Services and Support--Facilities Subsector Bargaining Association v. British Columbia. (1) Other contributors to this Forum will undoubtedly explore and explain the significance of B.C. Health Services both in terms of its reversal of position in relation to collective bargaining as an aspect of the Charter right to freedom of association and in terms of its broader implications for understanding the scope of that right in other contexts. My contribution is far more modest--it is to examine the impact of B.C. Health Services since its release (8 June 2007 to 31 December 2008).
Like all Supreme Court of Canada decisions, B.C. Health Services has had both direct and derivative impacts: direct in the sense that it resolved a legal point of contention between the parties to the litigation--so there is an aftermath to report-and derivative in the sense that the decision has impacted on our understanding of freedom of association and thus on the rights of persons asserting Charter associational rights in other contexts.
AFTERMATH: DIRECT IMPACT
B.C. Health Services has proven costly to the government and taxpayers of British Columbia. In January 2008, the provincial government, through the Health Employers Association of British Columbia (HEABC) which represents over 300 health tare employers in the province, and the various union sectoral bargaining associations completed negotiations to give effect to the Supreme Court of Canada decision. (2) These negotiations focussed on issues pertaining to bumping, contracting out and layoff (the subjects of the provisions of the provincial legislation held invalid in B.C. Health Services) as well as compensation for employees negatively affected by the invalid provisions and new consultation mechanisms. (3)
The four settlement agreements apply to the sectoral associations of unions created for bargaining purposes pursuant to the Health Authorities Act. (4) The four sectoral associations are: 1) the Community Bargaining Association (CBA) representing approximately 14,000 community health care and community health care support workers as well as assisted living and resident care workers; 2) the Facilities Bargaining Association (FBA) representing approximately 43,000 employees in a variety of classifications such as licensed practical nurses, food service workers and lab assistants; 3) the Health Science Professional Bargaining Association (HSPBA) representing approximately 14,000 employees such as residents and paramedics providing diagnostic, clinical and rehabilitation services and who apparently did not join in the constitutional litigation which became B.C. Health Services; and 4) the Nurses Bargaining Association (NBA) representing approximately 30,000 nurses (predominately registered nurses). Rather than detail each settlement agreement, I will present an overview and use the NBA agreement to illustrate specific points.
The public announcements of the four settlement agreements each declared that the "employers retain the option to contract out certain services, ensuring both flexibility and sustainability for healthcare." For example, the NBA agreement states "the Employer may contract out non-clinical services, including when such contracting out results in the lay off of employees." (5) Both the CBA and FBA agreements provide for employer consultation sixty days before the employer exercises its right to contract out work. The HSPBA and the NBA in contrast provide for potentially more extensive consultation reminiscent of the institutions of industrial democracy intended to enhance the voice of labour in the workplace. The NBA agreement provides for two types of consultation: 1) annual meetings of the leadership of the NBA with the deputy minister of health, senior health executives and the chief executive officers of the six regional health authorities and 2) biannual meetings of the NBA leadership with the administrators of the six regional health authorities. These meetings are to address "on a confidential basis, developments and potential initiatives" which, in relation to annual meetings, "significantly affect the health sector and which may have an impact" on NBA members and, in relation to the biannual meetings, "which may arise within the Health Authority and which may have a significant impact" on NBA members. (6) This latter phrasing should clearly include the impact of contracting out. The NBA settlement agreement also addressed other matters pertaining to seniority, salary on promotion, long term disability, a three year B.S.N. program, tuition costs and professional qualifications assessment services for internationally educated nurses (IEN). (7)
All four settlement agreements provide compensation for employees adversely affected by the provisions of the unconstitutional provincial statute limiting collective bargaining rights and retraining support for individuals laid off by application of the impugned provisions. In exchange, each bargaining association agreed to deem resolved all individual and policy grievances related to the implementation of the statute by health employers. The combined amounts total approximately $84 million viz. CBA, $1.5 million in compensation and $2.5 million for retraining; FBA, $68 million and $2 million, respectively with ah additional $5 million ser aside for employees impacted by future contracting out of services; HSPBA, $3 million for both compensation and retraining; and NBA, $1.8 million and $200,000, respectively. The compensation and retraining support will benefit the approximately 9,000 health care workers laid off by employers who exercised the impugned statutory management rights to contract out services at long term care facilities and closed other health care facilities or services. (8)
Final closure for the B.C. Health Services litigants came in late May 2008 when the B.C. Legislature enacted Bill 26, the Health Statutes Amendment Act, 2008. (9) Sections 6 and 7 of this Act simply repealed the provisions of the Health and Social Services Delivery Improvements Act held invalid by the Supreme Court of Canada in B.C. Health Services.
AFTERMATH: DERIVATIVE IMPACT
In B.C. Health Services, the Supreme Court of Canada revisited the scope of the Charter, section 2(d) right to freedom of association. Putting aside past decisions which excluded the process of collective bargaining from the scope of the right, the Court held, in the words of McLachlin CJC and LeBel J:
...s. 2(d) should be understood as protecting the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining .... ... the constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment. In brief, the protected activity might be described as employees banding together to achieve particular work-related objectives. Section 2(d) does not guarantee the particular objectives sought through this associational activity. However, it guarantees the process through which those goals are pursued. It means that employees have the right to unite, to present demands to health sector employers collectively and to engage in discussions in an attempt to achieve workplace-related goals. Section 2(d) imposes corresponding duties on government employers to agree to meet and discuss with them. It also puts constraints on the exercise of legislative powers in respect of the right to collective bargaining ... [emphasis added] (10) As expressed in this excerpt, freedom of association supports the freedom of expression of employees in relation to workplace issues and, as the Court develops in its reasons for decision, is supported by a corresponding duty on the employer to hear (meet) and to bargain in good faith. (11) This explanation 'sounds' of the US approach to freedom of association as a penumbra or derivative right inextricably linked to and supporting the freedoms of religion, expression, and peaceful assembly. As further noted by the Court, freedom of association is triggered only by state action and is subject to an internal limitation that interference with the freedom be "substantial". (12) One may be forgiven for thinking immediately of the Quebec Secession Reference as the model for this view of expression and association--that opinion also requiring good faith bargaining in response to the positive expression by a clear majority to a clear question favouring international sovereignty and secession from Canada. (13) The duty to consult in matters of Aboriginal law also comes to mind.
Differently stated, freedom of association is perceived as a process of free discussion to achieve a goal but not the goal itself. In making this determination, the Court applied a contextual approach which drew upon the historical, social, and international law contexts in which the pivotal significance of collective bargaining is affirmed. It should not necessarily follow, however, that B.C. Health Services should be limited to the collective bargaining context. Surely, the procedural aspect of the freedom extends to other non-workplace situations and interests. Thus, it is helpful to examine the jurisprudence to learn if B. C. Health Services has been interpreted broadly or narrowly.
To prepare this forum...