Ruling extends freedom of association provision of Charter to include right to free collective bargaining.
British Columbia unions protest Bill 29 when introduced four years ago. [Photo: Hospital Employees Union]
In a remarkable decision June 8, the Supreme Court of Canada ruled that collective bargaining is protected by the Charter of Rights and Freedoms. The ruling means that governments cannot cut costs by revoking all or fundamental parts of negotiated collective agreements.
The court’s six-to-one decision strikes down parts of Bill 29, British Columbia’s Health and Social Services Delivery Improvement Act, which trampled collective agreement protections for healthcare workers and paved the way for massive job losses and contracting out to multinational corporations.
“The right to bargain collectively with an employer enhances human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work,” Chief Justice Beverley McLachlin and Justice Louis LeBel wrote in their ruling.
CAUT legal counsel Rosemary Morgan said the court’s decision is a significant break from past decisions. “The court has now declared that the right to collectively bargain is a fundamental right, predating the Charter, and, significantly, that collective bargaining augments the related Charter values of democracy, equality and freedom of expression,” Morgan said.
Previous court decisions had ignored the differences between organizations, treating the freedom of book clubs and trade unions as if they were identical.
As the ruling, which was also signed by justices Michel Bastarache, Ian Binnie, Morris Fish and Rosalie Abella, states, “The unfortunate effect (of this decontextualized approach) was to overlook the importance of collective bargaining — both historically and currently — to the exercise of freedom of association in labour relations.
“The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in a labour context.”
CAUT executive director James Turk said he’s hopeful the judgment will result in a similar outcome for the 8,000-member Federation of Post-Secondary Educators, which launched a Charter challenge of a parallel B.C. law that permitted the refusal of college employers to negotiate or recognize key terms of employment including maximum class sizes, maximum numbers of students per instructor, control over instructional techniques, hours and days of work, hours of operation, limits on scheduling of professional development time and vacation time and limits on the extent to which teaching-related tasks could be assigned to non-teachers.
“The Public Education Flexibility and Choice Act undercuts the fundamental nature of the employment contract for academic staff, including the clear adverse impact on academic freedom,” Turk said.
“It presents a significant argument, now supported by decision, that the government has breached the sector’s Charter right to association.”
CAUT is an intervenor in this case.