Canadian Supreme Court Constitutionalizes Bargaining Rights

With the active day for labor and employment in the United States yesterday, lost in the shuffle was the equally important labor decision that came down from the Supreme Court of Canada, British Columbia Health Services.  Because I know little of Canadian Labour Law, I leave it to Michael Lynk (Western Ontario - Faculty of Law) to fill in the details:

[There has been a] landmark ruling by the Supreme Court of Canada this past Friday on trade union rights to collectively bargain, and its constitutional protection under the freedom of association guarantee in s. 2(d) of the Canadian Charter of Rights and Freedoms  . . . .

The Court essentially tossed out 20 year old constitutional caselaw precedents that had narrowly and ungenerously interpreted trade union and collective rights. Its new ruling has significantly expanded the meaning and protection offered by the Charter in the realm of collective bargaining. The central issue in B.C. Health Services was whether the British Columbia provincial government was acting within its constitutional jurisdiction when it significantly rolled back collective agreement provisions on seniority, contracting out, layoff rights and bumping in the provincial contracts for public sector health care workers during a period of government fiscal exigency. The British Columbia Supreme Court and Court of Appeal had dismissed the unions' constitutional claims, basing their rulings on the extremely narrow scope of collective associational rights in the workplace etched by the Supreme Court of Canada in a series of Charter rulings dating back to 1987. 

To the shock of many -- and I can say this with actual authority, as I was in a meeting of Canadian labour law scholars from across the country on Friday when the judgement was released -- the Supreme Court explicitly buried much of its former jurisprudence and opened a new door to freedom of association issues, and to constitutional protection for some aspects of Canadian labour and employment law. The Court provided a detailed, sophisticated and sympathetic history of the emergence of labour law in England and North America (dividing the history in the eras of repression, tolerance and recognition), it approvingly quoted Karl Klare and his classic analysis of the Wagner Act principles, and it paid particular attention to the freedom of association principles in international labour and human rights law . . . .

There are several important trade union constitutional challenges to government legislation that are presently in the lower courts, waiting for the direction in B.C. Health Services from the Supreme Court of Canada. These cases include challenges to legislative prohibitions to unionization by agricultural workers in Ontario and Royal Canadian Mounted Police officers in the federal sector. The changes of success in these cases has just improved significantly. Stay tuned.

Wow, well I don't think we are close to constitutionalizing collective bargaining rights in this country, but one can dream, can't he?

PS