In a case that pitted B.C. health unions against contentious labour legislation, the Supreme Court of Canada ruled last fall that collective bargaining is protected by the Charter of Rights and Freedoms. The decision significantly changes the lives of many Canadian labour law practitioners and policy-makers, says Kevin Banks, assistant professor in Queen’s University Faculty of Law.

Kevin practised labour and employment law for several years, and worked in senior posts in the federal public service—most recently as Director General, Labour Policy and Workplace Information. In this article, he talks about the decision and describes how lessons learned in international law can provide practitioners with guidance on constitutionally protected collective bargaining rights.

What did the Supreme Court of Canada decide, and what happens next?

The court gave the freedom to bargain collectively constitutional protection under section 2(d) of the Charter of Rights and Freedoms. That section protects freedom of association for all Canadians. For practitioners, international labour law can provide guidance in determining which aspects of our collective bargaining system should be treated as fundamental to freedom of association, which aspects represent policy choices among a range of viable alternative ways of protecting that freedom, and which ones should fall outside of the reach of constitutional protection.

Why was the Supreme Court’s decision such a surprise?

The Supreme Court reversed itself completely on the issue of whether collective bargaining was constitutionally protected or not, and did so within a relatively short time span—20 years in constitutional law is not a long time.

The court had previously said that collective bargaining was not constitutionally protected by section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association, and had said so quite explicitly. In a trilogy of cases dealing with the right to strike in decided 1987, the court laid out an understanding of freedom of association clearly suggesting that collective bargaining was not protected under section 2(d). And the court specifically affirmed that this was the case about three years later in the case of the Professional Institute of the Public Service of Canada vs. Northwest Territories.

Now with B.C. Health, the court has reversed its line of thinking, and ruled that providing meaningful protection of freedom of association to those who choose to join a trade union includes protecting the freedom to bargain collectively.

What explains this remarkable reversal?

The judgment in B.C. Health lays out a completely different way of looking at the importance of collective bargaining in Canadian society.

How the court gets to this point is an interesting story. It essentially reverses its own previous understanding of Canadian labour history. The court says that collective bargaining is not properly characterized as a set of ‘modern rights’ that were simply created by legislation—which was its previous understanding. It says that this view was actually inconsistent with labour relations history in Canada, and that if you look back through that history, collective bargaining has been of fundamental importance to working people, and that’s why it was eventually incorporated into legislation. The court’s view now is that the statutes didn’t create the right; they simply afforded it some protection.

The court also rethinks what freedom of association means, and says that it must protect activities that can only really be performed by a collectivity. In the trilogy of cases I mentioned earlier, the court had said that the Charter did not protect an activity just because it was essential to giving an organization meaningful existence.

The majority on the court had been leery of protecting particular activities of associations because it did not see any basis for distinguishing between the activities of different associations. So it simply said that section 2(d) protected the freedom to establish an association, and any activities of associations that were already protected somewhere else in the Constitution, like freedom of expression. This left legislatures free to prohibit certain activities that really could only be carried out in association.

The court’s approach was criticized as formalistic because it treated all associations as essentially the same—a group of golfers coming together for a match had the same constitutional importance as a trade union seeking to bargain collectively. This, critics said, ignored the importance to Canadians and Canadian society of employees’ joining together to bargain collectively to improve their conditions of work.

What the court says in B.C. Health is that we have to move away from a formalistic equivalence between different kinds of associations. A book club is not the same thing as a trade union, and we need to look at these organizations in their social and historical context. You have to inquire into the significance of collective bargaining as a form of association on its own terms. That was the importance of the historical review.

The court also looks to the international legal context to understand the significance of collective bargaining in Canada. It finds that international law can help in interpreting Charter guarantees, and that a number of different conventions to which Canada is a party recognize the right of members of a union to engage in collective bargaining as part of freedom of association. So international law was also an important influence in the B.C. Health decision.

What key issues do Canadian practitioners need to understand about the judgment?

The court’s decision means that some aspects of our collective bargaining system are going to be given constitutional protection. But it is clear that not all aspects will. Practitioners are already being called upon to assess and present arguments on where the lines ought to be drawn.

The court provides some very general guidance on this issue. It says that the legislature must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith. But that leaves open a number of major questions. What is meaningful influence? Does it include the ability to exert economic pressure, say by taking strike action? And what is substantial interference?

Unfortunately, the judgment is a bit vague with respect to both of these concepts, and this already giving rise to further litigation. Before the overall impact of the decision becomes clear, we’re going to have a number of other court decisions to begin to clarify some of these issues.

What are the implications for labour and employment law practitioners?

There are a number of direct and concrete implications. First, legislation that restricts the scope of issues that can be bargained collectively may be subject to challenge. This will have potential implications for public sector labour relations legislation in particular, which often does restrict issues that can be bargained collectively.

The decision also raises directly the question of whether the right to strike is protected. Other aspects of labour relations law that might be affected include legislation that purports to redefine the scope of bargaining units: can the government redraw bargaining units in any way that it sees fit, or will that amount to substantial interference?

Another way to look at it is through the lens of what the Constitution requires of government as an employer directly regulated by the Charter. The government needs to be careful about what sorts of methods of self-help or avoidance of collective bargaining it engages in that capacity.

What are practitioners going to be grappling with now?

In very concrete terms, they are going to be grappling with whether the kinds of laws and other government actions that I just mentioned substantially interfere with the capacity of employees to exert meaningful influence through collective bargaining. This means they will be advising and making arguments on whether such measures interfere with the capacity of employees and their unions to deal with issues of importance to them in a way that undermines good faith bargaining.

Over time, the case law that practitioners are involved in creating will sort out which aspects of our collective bargaining system should be treated as fundamental to freedom of association, which aspects represent policy choices among a range of viable alternative ways of protecting that freedom, and which ones should fall outside of the reach of constitutional protection.

No real attempt to separate the fundamental provisions from the ad hoc compromises that are inevitably part of the legislative process has been undertaken before. Now we’re going to be engaged in a debate and discussion about the core elements that really have to be protected constitutionally. This is an entirely new kind of legal analysis for us: it’s is an exercise we have never really engaged in within Canadian domestic labour law.

Where can practitioners look for guidance?

The court articulates a couple of propositions in B.C. Health that make international labour law directly relevant to deciding the scope of Charter protection.

The first is that, as the court says, the Charter should be presumed to provide at least as great a level of protection as was found in the international human rights document that Canada has ratified.

The second is that international labour obligations reflect principles that Canada has committed itself to uphold. And such commitments to principle along with the current state of international thought on them can be persuasive sources for interpreting the scope of Charter rights.

So we can draw some guidance from the body of international labour law that has been developed over the years as we begin to articulate what’s fundamental in Canada and should be constitutionalized.

After all, the international labour law community has had to make sense of very broad protections like freedom of association in the context of many different legal histories and cultures across many different countries. It has created a relatively small set of binding norms that say: “This is what any meaningful conception of freedom of association needs to include in the way of protections for collective bargaining.” It has also created a lot of persuasive doctrines about what kinds of alternatives are acceptable ways of protecting the freedom to bargain collectively.

For example, various committees of the International Labour Organization (ILO) have elaborated detailed doctrines, with supporting arguments, on when binding arbitration might be substituted for the right to strike. These doctrines often enjoy the support of management, government and labour representatives at the international level. So they might well have persuasive influence here in Canada as well.

If I’m right that the Supreme Court has made appeals to international labour law a lot more authoritative and relevant, then practitioners are going to need to get to know more about it: what sources of international labour law are binding, which ones are simply persuasive, and what makes them persuasive or not.

The ILO is probably the most important source for international labour law. There are also two important UN covenants: the International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights. Canada has ratified both of those.

International Labour Organization: http://www.ilo.org/global/lang–en/index.htm