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Collective Bargaining Rights of RCMP Officers

16-Jan-15

By Hugh McPhail, Q.C.

The Supreme Court of Canada issued two important decisions today involving the RCMP. Although the first of these decisions was reported in some media as upholding the right of RCMP members to unionize, that is a misleading summary of the decision.

RCMP members have historically been excluded from the general public service labour relations statute which involves the usual union relationships that are similar across the country: there is a right for the majority to choose a trade union to be their bargaining representative, a duty on both sides to bargain collectively in good faith towards a collective agreement, and either a right to strike or a right to access third party arbitration if there is an impasse in that bargaining. The appellants wanted to be caught by the same scheme (which is generally known as a "Wagner Act model of labour relations" because that was the name of the original American statute which adopted such a scheme).

In Mounted Police Association of Ontario v. Canada (Attorney General), the Supreme Court of Canada followed recent rulings and decided that there was no right under the Charter to a Wagner Act model. However, it ruled that s. 2(d) of the Charter with its guarantee of freedom of association "protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests." In the view of the Court, "the current RCMP labour relations regime denies RCMP members that choice, and imposes on them a scheme that does not permit them to identify and advance their workplace concerns free from management's influence." Under those regulations, not only are members represented by an organization they did not choose and do not control, they must work within a structure that is part of the management organization of the RCMP. In other words, the regulations provided for a management-imposed internal human relations scheme. The element of employee choice was found to be almost entirely missing, and the structure was found to have no independence from management.

The decision is broadly consistent with the 2011 decision of the Court in the Fraser case except, as noted in a strong dissent by one of the judges, it has, to a degree, modified the tests. It is no longer required for a Charter breach that the legislative scheme make "meaningful collective bargaining effectively impossible". It is now enough if there is a "substantial interference with the right to associate for the purpose of addressing workplace goals through a meaningful process of collective bargaining, free from employer control." In making this finding, the Court is showing an increased willingness to insert itself into determining the appropriate balance of what constitutes a meaningful process of collective bargaining. In the view of the dissent, this was an inappropriate interference.

The Court struck down the applicable legislation but, as it often does, it suspended the operation of the order for 12 months to allow the government to pass new legislation which would satisfy the Charter. In doing so, the Court was very careful to recognize that there were many options available for the government and they did not necessarily require the imposition of a Wagner Act model of labour relations. With Fraser as the guide, it could provide a minimal system where officers are free to choose representatives to make collective representations on their behalf without a right to strike or a right to an arbitrated settlement from an impartial third party. Given the existing system involved a form of collective representation, it will be interesting to see how much changes under any revamped system.

The second decision issued today (Meredith) concerned the federal government's salary restraint legislation which it passed, after the 2008 financial crisis, in 2009: the Expenditure Restraint Act ("ERA"). It imposed a limit of 1.5% on wage increases in the public sector for the 2008 to 2010 fiscal years. The ERA also prohibited any other increases to compensation, but contained an exception for RCMP members permitting the negotiation of additional allowances as part of transformational initiatives within the RCMP.

In the case of the RCMP members, the ERA resulted in a rollback of scheduled wage increases from the previous Pay Council recommendations accepted by the Treasury Board, from between 2% and 3.5% to 1.5% in each of 2008, 2009, and 2010. The original increase would also have doubled service pay and increased the Field Trainer Allowance. Both of these were also eliminated by the ERA. However, the limits imposed by the ERA were time-limited in nature, were shared by all public servants, and did not permanently remove the subject of wages from collective bargaining. In these circumstances, it was the view of the Court that there was no Charter breach. In their words: "The ERA and the government's course of conduct cannot be said to have substantially impaired the collective pursuit of the workplace goals of RCMP members."

The decision confirms the ability of governments, in the face of similar fiscal crises, to legislate public sector compensation (and to overturn settlements already made) by legislation like the ERA. It will be interesting to see what options are pursued by governments to deal with the fiscal challenges of 2015. This case supports one path that could be pursued in the future, but it is unfortunate that the Court chose to provide little guidance beyond the precise facts they were dealing with. We will have to wait for future cases for that.
 

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