(Re)Discovering the Promise of Fraser? Labour Pluralism and Freedom of Association.

• Author: Hastie, Bethany
• Position: Canada

Introduction I. Freedom of Association and Labour Pluralism II. Ontario v. Fraser Opening the Door to Labour Pluralism III. The Structure of Collective Bargaining under a Labour Pluralism Approach to Section 2(d) IV. Collective Bargaining and Good Faith Negotiations under a Labour Pluralism Approach to Section 2(d) V. Collective Bargaining and Dispute Resolution under a Labour Pluralism Approach to Section 2(d) Conclusion Introduction

Section 2(d) of the Charter, which guarantees freedom of association, has undergone substantial evolution at the Supreme Court of Canada in the past decade. Its current scope and content hold significant potential to extend robust protection and power in the workplace to a variety of models for collective workplace representation (CWR) beyond formal unionization. The dominant model of CWR in Canada has long been the Wagner model of labour relations, the hallmarks of which are majority representation and exclusivity of the bargaining agent. (1) Outside of Canada, various CWR models operate differently than the Wagner model, including minority unionism, (2) soft models for employee representation, (3) and other legislated regimes, such as Australia's Fair Work Act 2009. (4) Despite increasing recognition of and support for complementary CWR models in Canada--that is models outside of majority unionism--little research to date has actively explored what non-Wagner CWR models may look like and require to be effective and viable options in Canada. (5)

In this article, I advance a purposive interpretation of section 2(d), one that facilitates its expansion and application beyond the Wagner model of labour relations enshrined in labour statutes across Canada. I take up the Supreme Court decision in Ontario (Attorney General) v. Fraser (6) as a launching point for this analysis. In this paper, I revisit Fraser in light of subsequent Supreme Court jurisprudence on section 2(d) (7) and read that subsequent jurisprudence in light of the Supreme Court's commitment to labour pluralism under section 2(d) as advanced in Fraser. I argue that there is fertile ground for a richer interpretation of section 2(d). Such an interpretation would communicate a bundle of rights available to legislated CWR models in a manner decoupled from the Wagner approach in Canada.

The legal regulation of work in Canada has changed remarkably little in the past decades, despite a dramatic shift in labour markets. This inertia has led to increasing dissonance between labour law and labour "on the ground." Neoliberal economic policy, globalization, the rise of the "gig economy," and the impact of technology, amongst many other factors, have led enterprises to shed direct-employment relationships in an effort to maximize profits and minimize risk and legal liability. (8) Alongside these trends sits a decline in unionization. This decline is particularly noticeable in private sectors and in North America, where the Wagner model has been the primary legal instrument for labour organization. (9) For example, union coverage in the private sector in Canada fell from 20.2 per cent in 2000 to 15.8 per cent in 2020. (10)

Unionization is increasingly out of reach, both formally and practically, for growing populations of workers. These populations include those who fall outside the direct-employment relationship, (11) and those whose work may be characterized as precarious in nature. (12) For instance, falling in these categories are workers in the gig economy, (13) private home care, (14) agriculture, (15) and industries with high turnover and a reliance on casual labour, such as food services and retail. Many of these populations of workers would benefit from access to CWR in order to pursue common goals in the workplace. Under models that are more accessible and flexible to the current labour market landscape, they could improve their working conditions, security, and wages.

In light of the current labour market landscape, scholars in and outside of law have discussed the urgency and importance of rethinking approaches to labour relations. (16) For example, literature on union revitalization considers the roles and functions of unions beyond their historical core. (17) Less attention has been paid to considering how legal structures and institutions for collectively organizing in the workplace can function in ways that extend robust rights and protections for workers outside of traditional unionism, particularly in the Canadian context. (18) I aim to con tribute to these conversations by demonstrating that attentiveness to the core content and commitments under section 2(d) may provide a robust foundation for the development of CWR models beyond majority unionism and extend meaningful rights and protections to workers.

I revisit the Supreme Court decision in Fraser (19) as a launching point for advancing this argument. Fraser (20) upheld the constitutional validity of the Agricultural Employees Protection Act (AEPA). (21) This statute stood in place of access for agricultural workers to the provincial Labour Relations Act (LRA). (22) In brief, the AEPA enables farm workers to form and join an "employees' association," participate in the lawful activities of the association, assemble, make representations to their employer concerning the terms and conditions of their employment, and be protected against interference, coercion, and discrimination in the course of exercising those rights. (23) The AEPA further provides that an employer must "give an employees' association a reasonable opportunity to make representations concerning the terms and conditions of employment," (24) and sets out a number of non-exhaustive factors relating to assessing reasonableness. (25) Finally, the AEPA designates the Agriculture, Food and Rural Affairs Appeal Tribunal (AFRAAT) as the body responsible for hearing complaints and providing orders and remedies for contraventions under the Act. (26)

Fraser is one of only two Supreme Court decisions to consider the constitutionality of a non-Wagner model of labour relations. As the only decision to uphold such a model, it was met with widespread criticism at the time of the decision. (27) For some, Fraser represented a retreat from the Supreme Court's 2007 Health Services and Support--Facilities Subsector Bargaining Assn. v. British Columbia (28) decision, which had been considered by some as constitutionally enshrining the Wagner model of labour relations. From this vantage point, the decision in Fraser was seen as a retreat or even threat because the reasoning suggested that Wagner-style majority unionism might not be the only path to collective bargaining. (29) Some took issue with specific pieces of the legislation in Fraser, particularly the lack of express statutory language giving effect to a duty to bargain in good faith. (30) For yet others, Fraser showed potential in expanding constitutional space under section 2(d) through its recognition of labour pluralism: the possibility of a plurality of constitutionally compliant and protected legislative models for and approaches to CWR. (31)

Since Fraser, a new trilogy of cases has proceeded to the Supreme Court. In its latest decisions, the Court has articulated new content required to give effect to section 2(d) and, thus, to a constitutionally valid scheme for labour organizing. Following from this recent trilogy, section 2(d) can be said to protect at least three key activities associated with collective workplace representation: (1) the right to collectively organize in the workplace free from employer reprisal; (32) (2) the right to engage in a process of good faith collective bargaining with the employer in order to advance workplace interests; (33) and, (3) a right to meaningful recourse (particularly, to strike) where an employer bargains in bad faith. (34) These cases shed new light on understanding the scope and content of section 2(d). In particular, these cases provide insight as to the structural requirements and considerations attending systems of collective bargaining. Read in light of Frasers commitment to labour pluralism, section 2(d) may therefore extend meaningful protection to CWR models beyond the Wagner approach of majority exclusive unionism that remains the current dominant frame of reference.

In this article, I explore how Fraser works with, rather than against, the recent section 2(d) jurisprudence to provide a bundle of labour rights that may be accessible and effective beyond the Wagner model. In doing so, I aim to lay a foundation for further dialogue on the potential of freedom of association to effectively protect and advance labour rights and from which to consider alternative CWR models and their viability in the Canadian labour landscape. This article proceeds in five parts. In Part 1, I outline current theoretical debates regarding freedom of association. I explain the normative commitments I understand to be communicated by section 2(d), as well as the concept of labour pluralism. These elements provide a foundation for my inquiry into the jurisprudence. In Part 2, I review the Supreme Court decision in Fraser in greater detail. I discuss how Fraser opened the door to a pluralistic understanding of labour rights and section 2(d). Yet, as I examine, the decision also left uncertainty about how such rights--in this case, the right to a process of collective bargaining--would be interpreted outside a Wagner frame. In Part 3, I examine the relationship between Fraser and the Supreme Court's reasoning in Mounted Police Association of Ontario v. Canada (Attorney General) (MPAO) to elucidate in greater detail the content of the right to collectively organize in the workplace under a pluralistic approach to labour relations. In Part 4, I revisit the issue of a right to collective bargaining. I detail the critiques and debates that flowed from Fraser. I also evaluate how a decoupled right to a process of...