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On June 8, 2007, the Supreme Court of Canada issued a landmark decision declaring meaningful collective bargaining to be a right protected by the Canadian Charter of Rights and Freedoms.

Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia[1] challenged legislation enacted by the Government of British Columbia to give health sector employers greater labour relations flexibility. The legislation impaired the collective bargaining rights of health sector unions by introducing changes to transfers and multi-worksite assignment rights, contracting out, the status of contracted out employees, job security programs, and layoffs and bumping rights. Indeed, the legislation purported to prevail over collective agreements and invalidated any part of a collective agreement, past or future, that was inconsistent with the legislation.

All seven justices who heard the case agreed that section 2(d) of the Charter, which guarantees the right to freedom of association, includes a right to engage in collective bargaining. The single dissenting judge, Deschamps J., concurred with the result but would have applied a different analysis to reach it.

OVERTHROWING THE STATUS QUO

In extending Charter protection to collective bargaining, the Court overturned 20 years of its own jurisprudence which had consistently held that the right to bargain was not a "fundamental freedom" encompassed within the freedom of association guarantee.[2] Stating that the reasons in previous cases no longer withstand scrutiny, the Court observed that association for the purposes of collective bargaining is a fundamental Canadian right predating the Charter. The Court held that the right to bargain collectively with an employer enhances workers' "human dignity, liberty and autonomy"[3] and is consistent with the Charter's underlying values and Canada's international obligations.

WHO IS IMPACTED BY THE DECISION?

The Charter applies only to state action. Section 2(d) of the Charter applies to government in its capacities as both legislator and employer. While Health Services addressed legislative action, the Charter protection extends equally to circumstances where the government acts as an employer. It applies to the conduct of all employers who are government actors.

We do not anticipate that the Court's decision will significantly impact private sector employers, although collective bargaining rights that currently exist under labour relations legislation have now been elevated to quasi-constitutional status and may be subject to more exacting review by labour tribunals in the future. The decision may well have much broader implications in the public sector, where many employees currently have limited rights to engage in collective bargaining.

PROTECTING A PROCESS, NOT AN OUTCOME

The Court stated that section 2(d) of the Charter protects the ability of employees to band together to achieve work-related objectives. It does not guarantee any particular objective or result but protects the process through which collective goals are pursued. In Health Services, it meant that health sector employees had the right to unite, to collectively present demands to their employers and to engage in discussions on significant work-related issues, free from the restraints imposed by the legislation at issue.

The Court emphasized that section 2(d) does not protect all aspects of collective bargaining. Rather, the protection is against "substantial interference" with the activity of collective bargaining. The state 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."[4] Moreover, the right to a process does not guarantee a particular model of labour relations or a specific bargaining method. Laws or actions which can be characterized as "union breaking" or "acts of bad faith, or unilateral nullification of negotiated terms, without any process of meaningful discussion and consultation" may significantly undermine the process of collective bargaining contrary to section 2(d).[5]

To determine whether an employer has violated section 2(d), two questions must be asked. First, is the subject matter important to the process of collective bargaining and to the capacity of union members to come together to pursue common goals? Second, does the government conduct respect the duty to consult and negotiate in good faith?

The majority of the Court suggested that all but the most trivial working conditions (such as the design of uniforms or the lay out of cafeterias)[6] ought to be viewed as matters important to the process of collective bargaining. If a matter is important to the union and its members, the parties must engage in meaningful dialogue to give effect to the rights embodied in section 2(d). The content of the duty to bargain in good faith has been developed in labour jurisprudence and is not altered by the Court's decision in Health Services.

WHAT THE FUTURE HOLDS

While the decision does not impose new labour relations obligations on employers, it may result in public sector unions attempting to increase the scope of their bargaining rights under those regimes where such rights are currently limited. Additionally, it will likely increase the complexity of litigation over unfair labour practices in the public sector. For public sector employers, we anticipate that unilateral actions and refusals to consult with a union that would, in the past, have attracted complaints of bad faith bargaining will now also draw accusations of Charter violation.

Increased complexity of litigation can also be expected for private employers in Quebec. Both public and private employers are bound by the Quebec Charter of Human Rights and Freedoms, which protects freedom of association and may now be seen to extend its protection to collective bargaining.

Health Services holds that some limits on the right to freedom of association may be justified under section 1 of the Charter in situations "involving essential services, vital state administration, clear deadlocks and national crisis." The Court does not go so far as to state that the Charter enshrines a right to strike. However, because the Court rejects the reasons relied on in previous cases to exclude striking from Charter protection, the issue of whether section 2(d) protects the right to strike will likely come before the courts again as a result of Health Services. If the right to strike is found to be encompassed within freedom of association, any limits imposed on the ability of workers in certain sectors to strike will only be permissible if they are "demonstrably justified in a free and democratic society", in accordance with section 1 of the Charter.

Ultimately, while Health Services is a landmark decision in Charter jurisprudence and has been widely covered by the media, most private sector employers will not immediately feel any resulting impact on their labour relations. For private sector employees, the case represents an affirmation of rights currently embodied in labour statutes and now shielded from legislative interference.

[1].    2007 SCC 27.

[2].    Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, PSAC v. Canada, [1987] 1 S.C.R. 424, and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367.

[3].    Health Services at para. 82.

[4].    Health Services at para. 90.

[5].    Health Services at para. 92.

[6].    Health Services at para. 96.

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

© Ogilvy Renault LLP 2007 - All Rights Reserved

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