Table of contents I. INTRODUCTION AND CAVEAT II. ONTHE EVE OF CHANGE:THE LABOUR TRILOGY III. THE FIRST STEP: DUNMOREAND BC HEALTH IV. AFTER BC HEALTH V. ADDING CON FUSION: THE DECISION IN FRASER VI. THE CURRENT STATE OF AFFAIRS VII. WHAT ISTHIS"RIGHTTO COLLECTIVE BARGAINING"? VIII. THE ZEALTOWARDS GOVERNMENT INTERVENTION: BACK-TO-WORK LEGISLATION IX. WHO IS ATTHE BARGAINING TABLE? WHOSE CONTRACT IS IT? X. CONCLUDING REMARKS "What can you do, thought Winston, against the lunatic who is more intelligent than yourself, who gives your arguments a fair hearing and then simply persists in his lunacy?" George Orwell, 1984
INTRODUCTION AND CAVEAT
This paper discusses the legacy of the Supreme Court of Canada's application of the Charter (1) to collective bargaining, be ginning with a trilogy of cases heard together in 1987--the "Labour Trilogy," (2)--up to the political and judicial developments in this area as of February 2013.
To begin, the perspective of this discussion must be clarified. This paper has been authored by a labour arbitrator and believer in collective bargaining. There is no attempt to remain unbiased about this author's belief in the importance of balanced and effective collective bargaining. Experience has demonstrated that principled collective bargaining can lead to healthy workplaces--for employers, investors and employees. The bargaining process has the potential to serve all parties' needs. Therefore, nothing in this paper should be interpreted as favouring labour unions or as being against an employer's right to manage. Readers should note the following is simply a discussion about the implications of judicial and political protections and/or interventions in this field.
ONTHE EVE OF CHANGE: THE LABOURTRILOGY
In 1987, it was not surprising that the Trilogy failed to give any constitutional protection to collective bargaining or related activities. The majority view at the Supreme Court of Canada (the "SCC") had historically been that the Charter's guarantee of freedom of association did not extend to collective bargaining. This was consistent with the notion that courts would not interfere with legislation or government action that affected labour relations. Courts had been content to leave those issues to the legislature, and left arbitrators and labour boards to address the disputes and conflicts that followed.
This approach was also consistent with the long history of judicial misunderstanding of unions, unionized workplaces and labour relations. Up until this point, there had been little appreciation of the role the Charter could--or should-play in labour law or labour relations. (3)
However, the current scheme of labour arbitration was designed to recognize that courts were neither equipped, nor the appropriate forum, to address the unique practical or policy issues that surround labour relations. Courts are too slow, too technical, too remote and too costly. A specialized and efficient alternate forum had to be created to bring cost efficient, responsive and realistic resolutions to workplace disputes. This is why unionized workplaces are governed by legislation that places workplace disputes before labour boards and arbitrators, giving such decision-makers the ability to issue binding resolutions with considerable deference given if tested on appeal or review. Therefore, courts are now reluctant to interfere with the application, administration and interpretation of collective agreements and leave any employment-related matters outside of their own jurisdiction. This expansion of arbitral authority has been illustrated in Weber v Ontario Hydro (4) and Tarry Sound (District) Social Services Administration Board v Ontario Public Service Employees Union, Local 324. (5)
The last 25 years have witnessed an evolution in Charter protection, judicial respect for labour relations matters and the appreciation of their importance in a democracy.
THE FIRST STEP: DUNMORE AND BC HEALTH
This evolution began with Dunmore v Ontario (Attorney General) (6) in 2001. Legislation passed by the Ontario government had stripped away collective bargaining rights for agricultural workers, which had been granted by a previous administration just one year earlier. The facts evoked sympathy and arose at a time when a better appreciation of Charter rights was evolving. The SCC was persuaded that the legislation had deprived agricultural workers of their fundamental right to freedom of association. The SCC also showed a willingness to review and, if necessary, strike down laws that affect the fundamental freedoms that the Charter was enacted to uphold.
Next, in 2007, the SCC was faced with a situation where the province of British Columbia, without consultation, passed legislation that nullified existing terms and conditions of employment that had protected employees against contracting out and provided for job security. (7) The legislation precluded employers and unions from bargaining with respect to those issues in the future. In that context, the SCC recognized that a unionized workplace holds a fundamentally important place in a democratic society. The SCC overturned the Trilogy, declaring that freedom of association, as guaranteed by subsection 2(d), protects "the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining." (8)
The release of BC Health sent shockwaves through the legal community, not simply because the highest court had, in a rare move, overruled itself, but because of what it had now concluded. However, it is not surprising to learn that, in a democracy, there is a constitutional protection for human dignity and a prohibition against discrimination. Similarly, it should not have come as a shock to anyone in 2007 to be told that people have the right to come together to engage in meaningful discussions about their rights and responsibilities in a workplace. This is what enlightened and successful enterprises have been actualizing for decades in the free world. One would like to think that the SCC was simply giving recognition to what should have been accepted as a basic understanding many years ago. After all, the Charter does not create rights; it protects them. Therefore, all that really happened in BC Health was that the Court clarified that the freedom of association included the right to engage in the process of collective bargaining. It was not a giant step forward to determine that the process of collective bargaining means bargaining in good faith.
AFTER BC HEALTH
The question then arose: "What does 'the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining' mean?" (9)
To labour relations practitioners, whether they are neutral, union-side or management-side, those rights are thought to be fairly basic. The fundamental tools of collective bargaining have been recognized to be: (10)
* The right to organize voluntarily into an appropriately defined group;
* The right to bargain in good faith;
* The right to a system where an employer can deal with one representative of a defined and cohesive group of employees; and
* The right to a fair dispute resolution system in a situation of impasse.
Indeed, the SCC recognized this as well. In BC Health, the SCC emphasized that, while the Charter only protects the "process of collective bargaining," (11) that same process confers substance and fundamental protections to both employers and unions. Accordingly, the SCC referred to the basic concept of "good faith bargaining" (12) and declared "the duty to negotiate in good faith ... lies at the heart of collective bargaining. ..." (13) As such, that duty to negotiate carries with it several elements, including:
* The "duty to engage in meaningful dialogue;"
* The right of workers to have their views heard in the context of a "meaningful process of consultation and discussion;"
* The importance of "meaningful discussion and consultation" to collective bargaining;
* "[T]he 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" through a process by which those goals are pursued;
* Mutually respecting the commitments entered into, taking into account the results of negotiations in good faith; and
* Protection from substantial interference with the activity of collective bargaining that discourages the collective pursuit of common goals, either by the state or by an employer. (14)
BC Health also recognized that the Charter protects employees from any legislation or government action that "substantially interferes" (15) with collective bargaining. The test of substantial interference is "whether the process of voluntary, good faith collective bargaining between employees and the employer has been, or is likely to be, significantly and adversely impacted." (16) This involves a two-part inquiry: (17)
Ask about the "importance of the matter affected to the process of collective bargaining and, more specifically, to the capacity of the union members to come together and pursue collective goals in concert."
Ask about "the manner in which the measure impacts on the collective right to good faith negotiation and consultation."
After BC Health, it might have seemed clear that subsection 2(d) should--and would--protect the right of workers to organize and to engage in meaningful collective bargaining, implying an obligation upon lawmakers to enact legislation that would protect and respect the rights and freedoms of vulnerable groups. Further, consistent with other Charter applications, BC Health reminded us that subsection 2(d) should be interpreted purposively: guaranteeing freedom of associational activity in the pursuit of individual...