A. The Right to Engage in Collective Bargaining

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 194-200

Page 194

The Supreme Court of Canada first dealt with the claim that section 2(d) protects the right to engage in collective bargaining in a trilogy of cases dealing with legislation limiting the right to strike. In the leading case, Reference Re Public Service Employee Relations Act,¹a majority of the Court held that the guarantee of freedom of association did not encompass the right to bargain collectively or the right to strike. The legislation at issue removed the right to strike from public sector workers and, in the absence of agreement, prescribed mandatory arbitration to determine the contents of the collective agreement. Justice LEDAIN held that the rights to bargain collectively and to strike are not fundamental rights or freedoms. Rather, they are the creatures of legislation that balances a number of competing interests. Clearly, LEDAIN J felt that the area of labour relations was one requiring specialized expertise. He was influenced by the fact that this area of law had largely been removed from the courts and assigned to the supervision of labour relations tribunals. Justice LEDAIN limited the protection of section 2(d) to "the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal."²The dissenting judges, Dickson CJC and Wilson J, concluded that the guarantee of freedom of association did include the rights for workers to bargain collectively and to strike. In their view, section 2(d) protected not only the right to join together but also the right of members of the association to pursue together aims that could be lawfully pursued individually. Although there is no individual equivalent to the right to strike, the dissenting judges thought that this activity should be included in section 2(d), given its importance to the protection of the interests of working people. While they would have found the legislation to violate section 2(d), the dissenting judges conceded that certain restraints on the right to strike would be acceptable under section

1. Chief Justice Dickson noted that ensuring essential services during a labour dispute could be a pressing and substantial objective under section 1. However, the legislation at issue was not, in his view, justifi-

Page 195

able because its prohibition on striking was too sweeping and included more than essential workers. Furthermore, Dickson CJC wrote, the arbitration provisions did not adequately safeguard employees’ interests, since they provided for government control of access to arbitration and placed restrictions on the items that could be bargained.

In the two companion cases, a majority of the Court held that limitations on the right to strike and bargain did not violate the right guaranteed by section 2(d). In one case, Saskatchewan legislation banning a strike in the dairy industry was upheld,³while the other upheld the federal government’s price-and-wage control program, which banned strikes and altered the financial compensation scheme.⁴Following these decisions, there was still some doubt whether section 2(d) of the Charter might include a right to bargain collectively, even if it did not include a right to strike. However, in the PIPS case, the majority of the Supreme Court rejected the argument that the right to bargain collectively was included in section 2(d).⁵The Professional Institute of the Public Service (PIPS) had represented a group of federal government employees transferred to employment with the Northwest Territories government. The public-service legislation of the Northwest Territories provided that a union could not obtain bargaining rights unless it was incorporated under legislation giving it the power to bargain collectively, and PIPS was not incorporated under this legislation. The majority of the Supreme Court held that there was no violation of section 2(d), because the transferred employees remained free to join any union. The incorporation provision was likened to the voluntary recognition provisions in other collective bargaining legislation, which allow employers to recognize a union’s right to bargain on behalf of its employees. Here, incorporation was the means by which the Legislative Council of the Territories conferred bargaining rights on a public sector union. As to the argument that this left PIPS with no chance to represent its former members, the Court held that no union could demand collective bargaining rights vis-à-vis an employer, stating that "since the activity of bargaining is not itself constitutionally protected, neither is a legislative choice of the bargainer."⁶Writing for the major-

Page 196

ity, Sopinka J turned to the reasons of MCINTYRE J in the earlier Alberta Reference and summarized his view of the meaning of section 2(d):

. . . first, that s 2(d) protects the freedom to establish, belong to and maintain an association; second, that s 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s 2(d) protects the exercise in association of the lawful rights of individuals.⁷Justice Sopinka concluded that collective bargaining is not protected by section 2(d): "Restrictions on the activity of collective bargaining do not normally affect the ability of individuals to form or join unions."⁸Justice Cory, with two others, dissented. In Cory J’s view, the Legislative Council had to comply with the Charter when implementing the decision to permit collective bargaining by its employees. Mandating the incorporation of bargaining agents was seen to be an interference...