A hard bargain

Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia
[2007] SCC 27

Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter: R. v. Zundel; Corbiere v. Canada; R. v. Oakes. All of these values are complemented and indeed, promoted, by the protection of collective bargaining in s. 2(d) of the Charter.

The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work (see Alberta Reference, at p. 368, and Wallace v. United Grain Growers, at para. 93). As explained by P. C. Weiler in Reconcilable Differences (1980): Collective bargaining is not simply an instrument for pursuing external ends, whether these be mundane monetary gains or the erection of a private rule of law to protect dignity of the worker in the face of managerial authority. Rather, collective bargaining is intrinsically valuable as an experience in self-government. It is the mode in which employees participate in setting the terms and conditions of employment, rather than simply accepting what their employer chooses to give them …. [p. 33]

We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.

The Canadian Supreme Court today recognises a right to (some elements of) collective bargaining as part of freedom of association, and strikes down some sections of ‘reforming’ labour law from British Columbia. It is a significant departure from past Supreme Court decisions on the interpretation of s 2(d) of the Charter of Rights and Freedoms (which deals with freedom of association) and is informed by a study of the history of work, unions and labour law, a perusal of the sources leading to the Charter, and significant reliance upon international law. Potentially a very significant decision.

One Reply to “A hard bargain”

  1. Judy Fudge celebrates being wrong (she was sceptical as to whether the court would go this far!) and wonders:

    Moreover, it is an open question as to whether collective bargaining can be limited to the duty to bargain in good faith. Grounding its decision in international law, specifically International Labour Organization and United Nations Conventions that Canada has ratified, the Supreme Court of Canada has opened the door to the question of whether freedom of association also includes the right to strike. It is in this context that the s.1 analysis may play a more prominent role, as it did in the dissenting judgment of Deschamps J.

    While it is heartening for people who are concerned with the dignity of workers that the Supreme Court has elevated collective bargaining to a constitutional right, it is unlikely that defensive battles fought in courts can turn the economic and political tide that has undermined the basis for transforming these rights into job security and improved wages for working people.

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