Northern Exposure

Collective Bargaining – Now It’s Constitutionally Protected

by Donovan Plomp
McCarthy Tetrault

In a landmark decision, the Supreme Court of Canada has decided collective bargaining is a right protected in the national constitution.

The court’s extension of “freedom of association” under the Charter of Rights and Freedoms to include a right to collective bargaining is a reversal of previous Supreme Court decisions.

Meaning of decision

The court’s decision means that parts of British Columbia’s Health and Social Services Delivery Improvement Act are contrary to the Charter – in particular, the way the law changes and restricts contracting out, layoff, and bumping rights in health-sector collective agreements.

The British Columbia law gave health care employers flexibility in managing their workforces, and in some cases it allowed them to manage employees in ways that wouldn’t have been permissible under existing collective bargaining agreements.

Under the British Columbia law, health care employers could manage workers without going by consultation and notice requirements included in collective bargaining agreements. The law also precluded collective bargaining on a number of issues relevant to the health-care sector.

British Columbia was given 12 months to address the repercussions of the June decision.

Take-home points

What does the decision mean for other employers? At least three things:

1. The duty to bargain in good faith now has Charter “teeth,” which may lead to more stringent review of bargaining tactics and strategy by labor relations boards. But it’s important to note that the decision is about protecting the collective bargaining process from “substantial interference,” not guaranteeing the outcomes.

2. Unions are more likely to rely on international labor standards and International Labour Organization declarations to support their positions. The Supreme Court made specific reference to international law in coming to its decision.

3. Governments may be less willing to step into private-sector strikes or lockouts. The court was most concerned with the government’s failure to consult with the unions before legislating in this case. We can expect governments to ensure that alternatives to back-to-work legislation are discussed before interceding in a private-sector labor dispute.