THE RIGHT TOOL FOR THE JOB? FREEDOM OF ASSOCIATION UNDER PROVINCIAL HUMAN RIGHTS CODES.

• Author: Vallance, Keir
• Position: Canada

"It is a vain thing to imagine a right without a remedy." (1)

1. Introduction

   Over the last decade, the Supreme Court of Canada has provided an expanding framework of labour rights that are protected by the constitutional guarantee of freedom of association (2) under the Canadian Charter of Rights and Freedoms. (3) It has now been recognized that freedom of association in the labour context protects the rights to form, join, and maintain trade unions, including a right to choice of bargaining agent which is independent from one's employer; to collectively bargain, including a duty on employers to bargain in good faith; and to strike.

   But despite the, unquestionably profound, changes in s. 2(d) jurisprudence, the reach of freedom of association under the Charter remains limited. This is because the Charter applies only to government action or government actors, not to private parties or the relationships between private parties. (4) Hence, while the Charter will apply directly to labour relations between a government and its employees, (5) that is because of the government's role as legislator, not as an employer qua employer. The Charter does not directly protect workers within the private sector. (6) In other words, the Charter does not itself require private sector employers to collectively bargain with their employees; it does not relieve workers or unions of liability in tort for strike activity; (7) it does not even render collective agreements enforceable as contracts at common law. (8) Such rights and obligations arise under labour relations legislation, not from the Charter directly.

   That said, freedom of association is also protected under human rights legislation. (9) In some cases, application of the freedom is specifically limited to review of other legislation; the human right statute's purpose is to ensure that the rights and freedoms protected therein are respected within other legislation. (10) More germane to this article, however, is where a province or territory has included freedom of association within its human rights code. Such inclusion is admittedly uncommon--only Yukon, Saskatchewan, and Quebec have done so to date. (11) However such inclusion, when coupled with the Supreme Court's purposive approach to freedom of association, arguably places the same obligations that are currently upon public employers--a duty to collectively bargain, a duty not to retaliate against employees who strike--directly upon private employers. (12) And this may be true even--or especially--for those workers who are not "unionized" (13) under the relevant labour relations legislation, and who therefore cannot take advantage of the statutory protections that currently exist for workers who are covered, or who are seeking to be covered, by that legislation.

   This presents a conundrum. On the one hand, if freedom of association is guaranteed within a provincial statute, why cannot workers (or indeed anyone) exercise that freedom on the terms set out by the Supreme Court under the Charter? On the other hand, is it a given that the two freedoms of association are equivalent? And might enforcement of a provincial freedom of association undermine or destabilize the existing labour relations legislation that the Supreme Court has taken pains to reinforce in its section 2(d) jurisprudence?

   What I explore in this article, therefore, is the potential of provincial human rights codes in promoting and protecting freedom of association and labour rights for non-unionized workers. (14) I am less concerned with the use of freedom of association to challenge legislative provisions; that can also be done using the Charter, and while it may be arguable that at least some elements of Canadian labour relations regimes are unconstitutional, (15) that is not my focus here, though that aspect of the inquiry will become more relevant when dealing with the right to strike.

   It is hardly self-evident, however, that human rights commissions are a possible (or appropriate) venue to pursue associational rights. There are numerous issues that must be addressed in making this argument. The issues I will address therefore are, in order: first, whether human rights commissions can, or should, be used to enforce freedom of association; second, whether freedom of association under human rights codes is the equivalent to freedom of association under the Charter, and third, what freedom of association under human rights codes might look like in application. In terms of application, I will examine the less controversial applications--freedom of association as an aspirational principle, as a principle used in interpreting other legislation, and as a complementary remedy within labour arbitrations--and then the more controversial--specifically the duty to recognize employee associations (especially those without majority support within the workplace), the duty to bargain in good faith, and the right to strike.

   I should add that nothing I say here should be taken to suggest that governments cannot or should not amend existing labour relations legislation to expand the range of protections or the range of workers who are covered. Of course, governments can do so; and perhaps should, given the limited success of the existing regime in promoting collective bargaining. (16) For that matter, governments in Saskatchewan, Yukon, and Quebec could remove freedom of association from their human rights codes or restrict the application of fundamental freedoms to review of other legislation. However, in the absence of legislative will one way or the other, it may be that the courts (or as I will argue, human rights commissions) may provide an alternative avenue for labour rights. (17) And at a more basic level, my focus is, simply put, on the implications that arise from the existing legislative guarantees of freedom of association. We already have the right; what, then, is our remedy? (18)

   A final introductory point: While the focus of this paper is labour law, the interaction between Charter rights and provincial human rights codes, and labour rights and human rights, may be of more general interest. In the vein of this issue of the University of New Brunswick Law Journal, the issues raised herein have constitutional and administrative law implications. The interaction between constitutional Charter freedoms and the equivalent quasi-constitutional freedoms within human rights legislation is not limited to freedom of association; though association is perhaps the most complicated in application, given the positive obligations inherent in the section 2(d) jurisprudence. The use of human rights commissions to enforce fundamental freedoms also raises significant administrative law implications, with an administrative tribunal potentially being asked to deal with issues outside of its institutional competence; and with two competing tribunals (human rights commissions and labour relations boards) potentially dealing with identical or similar issues.

2. Non-Wagnerist Labour Rights for the Non-Unionized

   Canadian labour relations legislation is based on the American "Wagner Act". (19) Union representation of workers under Wagner Act-style (or "Wagnerist") legislation is premised on two key principles: majoritarianism and exclusivity. If workers wish to collectively bargain with their employer, they must first become members of a bargaining unit certified by the relevant Labour Relations Board. Within the proposed bargaining unit, a majority of the workers must vote to be represented by the applicant union--majoritarianism--and then only the applicant union may represent those workers--exclusivity--unless and until the union is displaced by another union or the workers choose to decertify. If the union is successful, then it becomes the bargaining agent for all workers in the bargaining unit and the employer and union both have a statutory duty to bargain in good faith and make efforts to conclude a collective agreement. (20) If the applicant union is unsuccessful in becoming the bargaining agent for the bargaining unit, however--if it fails to obtain majority support within the unit--then the employer is under no legal obligation whatsoever to collectively bargain with either its employees, or any union.

   Canadian labour relations legislation is also characterized by strict control of strike activity. Workers who are not represented by a certified bargaining agent cannot, generally speaking, strike. (21) Workers who undertake such action will be seen to have breached, or even repudiated, their contracts of employment. (22) And workers who are represented by a certified bargaining agent are governed by the so-called "peace obligation" which prohibits any strike during the term of a collective agreement. (23) Where workers historically used the strike to force an employer to recognize and bargain with their union, they now use the certification process and the statutory "duty to bargain in good faith". Where strikes were once the means by which collective agreements were enforced, (24) disputes between employers and their unionized employees are now handled through statutorily-mandated labour arbitration. (25)

   Outside of labour relations legislation, labour rights such as collective bargaining and the right to strike are fragile. Consider non-unionized workers undertaking strike action. This could include activity such as the "fast food strikes" or the "Fight for 15" (26) in the United States, where low-wage workers walked off the job en masse to militate for a higher minimum wage and more effective protection of union organizing. Or it could include less dramatic action such as Icelandic women collectively leaving work two hours early to protest the 30 per cent wage gap between women and men. (27) Such action would not be protected--indeed, would be illegal--under Canadian labour relations statutes. The workers would be liable for discipline or dismissal...