Prospects for labour's right to bargain collectively after B. C. Health Services.

• Author: Adams, Roy J.
• Position: UNBLJ Forum: Recent Developments in Canadian Labour and Employment Law

In its 2007 B.C. Health Services decision, the Supreme Court of Canada (SCC) constitutionalized labour's right to bargain collectively. (1) The Court ruled that the Canadian Charter of Rights and Freedoms "should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified". (2) At present, however, only some aspects of Canadian law and practice are consistent with international standards. My intent in this essay is to review the current situation in Canada in light of international standards and speculate on future developments.

In the international system, the International Labour Organization (ILO) has been given the task of developing international labour law. The primary institutions within the ILO that deal with issues of freedom of association and collective bargaining are the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association. The first is generally known simply as the Committee of Experts and the latter as the CFA. The Committee of Experts oversees the implementation of Conventions and Recommendations (the two key ILO legislative instruments) by member states that have ratified the relevant instruments. The primary function of the CFA is to oversee the implementation of the constitutional duty of all ILO member states to respect and protect ILO principles regarding freedom of association and the right to bargain collectively. Although the two sets of responsibilities may be considered technically distinct, ILO staff coordinate the work of the two committees closely and, with respect to freedom of association and the right to bargain collectively, their "jurisprudence" is essentially identical.

The key ILO conventions with respect to the right to organize and bargain collectively are No. 87 on Freedom of Association and the Right to Organize and No. 98 on the Right to Organize and Collective Bargaining. Since Canada has not ratified No. 98, some Canadian authors have concluded that Canada has no responsibilities under it. (3) Whether true or false, that assertion is of little practical relevance. Because of the coordination between the two key ILO committees, the CFA has interpreted Canada's duties under the ILO constitution to be essentially identical to those of countries that have ratified Convention 98. (4) As an ILO member, Canada has a duty to ensure that workers are able to exercise those rights and that employers and the government fulfill the duties that enable workers to exercise their rights.

Canada has, in addition, ratified the U.N. Covenant on Civil and Political Rights and the U.N. Covenant on Economic, Social and Cultural Rights. Each of those covenants guarantees freedom of association which, in international law, embraces the right to organize and bargain collectively. Agencies with the mandate to interpret the meaning of state duties as signatories of those covenants generally defer to ILO jurisprudence with respect to freedom of association and the right to organize and bargain collectively. (5) The ILO constitution and the two covenants are considered to be treaties under which Canada has legal obligations. Below, I consider some of the relevant rights and duties regarding union organizing and recognition for bargaining purposes.

THE RIGHT TO ORGANIZE

Under international law, Canadian workers have a right to organize in a format with which they are comfortable. They may join an existing union or set up their own association or union. If they choose the latter they have the right to establish a formal constitution or to simply operate informally. (6)

Under international law, members of employee organizations have the right to choose their own leaders. This right has relevance when contrasted with the employers' right to establish schemes that permit employees to participate in discussions about terms and conditions of work and work organization. When employers establish employee representation schemes, they generally assume the right to determine the issues that will be discussed and how employees will be chosen to participate. Under international law, such schemes, disparagingly known in Canada and the United States as company unions, are not valid substitutes for organizations formed and controlled by employees. In other words, although employers may establish employee representation plans as part of their corporate human resources strategy, these plans do not fulfill their duty to recognize and bargain collectively with independent worker organizations.

Once formed, independent labour organizations have the right to develop a program to defend and advance the employment interests not only of their members but also the interests of the entire class of similarly situated employees. Just as seniors, women and members of ethnic groups may establish associations for the defense and advancement of the interests of all seniors, all women, all members of the ethnic group in Hamilton, in Ontario or in Canada as a whole, so may retail clerks employed by Wal-Mart organize to seek the advancement of all similarly situated Wal-Mart workers in the same store, in all stores in Ontario or in all stores across Canada. Employees also have the right to seek collective negotiations with their employer. These international rights--to organize, develop programs, elect leaders and seek negotiations--have long been considered Canadian constitutional rights as well. However, because of customs that have arisen around the operation of Canadian statutes providing for the certification of exclusive bargaining agents, these rights are not well known and are underexercised. With respect to the United States, professor Clyde Summers has remarked that there is a general belief that uncertified associations have no role to play in the industrial relations system. (7) Much the same may be said about Canada.

THE RIGHT TO BE RECOGNIZED FOR BARGAINING PURPOSES

Under international law, Canadian workers who form associations to defend and advance their employment interests have a right to be recognized for bargaining purposes by their employers. (8) This right does not require the employee organization to attract a majority of the relevant workers, nor does the failure of such associations to attract a majority exonerate employers from recognizing them for the purpose...