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Supreme Court Narrows the Constitutional Protection of Collective Bargaining

02-May-11

By Hugh McPhail, Q.C., Partner

On Friday, the Supreme Court of Canada (“SCC”) issued its long-awaited decision in the Fraser appeal, and 8 of the 9 judges seemed to have no difficulty concluding that the Ontario Court of Appeal was wrong. What is more interesting is the debate that is on display in the judgments over whether the 2007 B.C. Health Services decision should be completely overturned (B.C. Health Services is the ground-breaking SCC decision that created a constitutional right to a process of collective bargaining).

Fraser concerned legislation in Ontario that gave agricultural workers limited rights to collectively approach their employers on workplace issues, well short of the typical duty to bargain in good faith/right to strike regime (Alberta similarly excludes farm workers – as it does domestic workers – from coverage under the Labour Relations Code). The SCC, overturning the Ontario Court of Appeal, ruled that the special farm workers’ legislation in Ontario was valid. They rejected the conclusion of the Court of Appeal that the Charter required that they have access to the same labour relations regime that applies to other workers. It was enough, the SCC said, that the legislation provided a meaningful process by which the agricultural workers can pursue workplace goals. It was also enough that the legislation gave individuals the right to make collective representations to the employer and to have those representations "considered by the employer in good faith" (the requirement of good faith was not explicit in the legislation, but found to be implicit by the majority of the SCC).

The majority decision doesn’t spend much time with the specific Ontario legislation, but spends most of its time defending itself against the conclusion of two of the nine judges that B.C. Health Services was wrong and should be overturned. Although the decision does not overturn B.C. Health Services, it lays open that possibility for the future. Not only does the majority say that it is too soon to declare that B.C. Health Services is an unworkable doctrine, but they also say that it would be inappropriate to reverse B.C. Health Services because none of the parties and interveners expressly sought that result. They openly clear the path to further litigation on this subject in the future. In the meantime, the Charter continues to protect the right to a general process of collective bargaining which requires parties to bargain in good faith on important workplace issues. It does not create a right to a particular model of collective bargaining or to a particular result in bargaining.

The SCC decision in Fraser represents a significant narrowing of how several cases have viewed the Charter after B.C. Health Services. It confirms that governments have significant latitude in this area and the Charter provides only very minimal protection of collective bargaining rights. Legislatures clearly need not apply all provisions of a full-fledged Labour Relations Code to all workers. It is only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible" that will violate the Charter’s freedom of association provision. And it also confirms that the rights they are protecting under the freedom of association provisions of the Charter are individual rights of workers, not rights of trade unions.

The Fraser decision will take the wind out of the sails of many Charter challenges that were commenced after B.C. Health Services. It should also end the suggestion that the right to strike is Charter-protected. More litigation on these issues is sure to follow.


 

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