Charter Protection Extended to Collective Bargaining

But the full extent of that protection, including right to strike, unclear.

The Canadian Centre for Policy Alternatives (CCPA) has released a research paper on the Canadian Charter of Rights and its impact on unions, collective bargaining and the right to strike. In the document, the CCPA says that in 1987, the Supreme Court of Canada dashed the hopes of the labour movement that the Charter of Rights would help their cause. At that time, the Court gave freedom of association a narrow interpretation which essentially failed to give effect to the fundamentally collective nature of the right.

Despite the recognition in international law of collective bargaining and the right to strike as essential elements of collective bargaining, the court's rationale was that Canada's system of collective bargaining was "too complicated and sophisticated" to be put under scrutiny by the courts. For close to twenty years, the rights of organized labour were essentially trampled with impunity by various governments. Collective agreements were overturned by legislation. Certain groups continued to be denied access to collective bargaining.

However, on June 8, 2007, in a stunning reversal of its previous decisions, the Supreme Court of Canada held that "the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining can no longer stand." At a minimum, the right to bargain collectively gained constitutional protection, and governments can no longer override collectively bargained rights with impunity.

The Court held that a government measure would be found unconstitutional if there was "substantial interference" in collective bargaining. In determining whether the government is substantially interfering with the process of collective bargaining, a court will consider two factors. First, it will look at how important the subject matter is to the process of collective bargaining. The second factor a court will consider in determining whether the government has substantially interfered with collective bargaining is the extent to which the government measure undermines or impacts on the collective right to good faith negotiation and consultation. The Court held that the duty to negotiate in good faith lies at the heart of collective bargaining.

Will the decision provide labour with any new arsenal against draconian governmental action? The answer is yes, but to what extent is currently unclear. However, there is some certainty where the parties have agreed to certain provisions in their collective agreements which governments then subsequently decide to override, or when governments prevent bargaining over important items.

Not surprisingly, the Court's decision has already reopened issues related to the right to strike. It can be expected that back to work legislation, as well as other draconian 1990s era legislation enacted primarily by Conservative governments will be subject to challenge.

It remains to be seen whether such challenges will meet with success, given that the Court explicitly stated it was not considering whether the right to strike is protected as part of freedom of association. However, given that the right to strike is regarded as essential to freedom of association and collective bargaining at international law, it would seem difficult to justify excluding the right to strike.

More details can be found in the full CCPA report. You can download a copy of the report in PDF format.