A ruling this year by the Supreme Court of Canada represents a sea change in the court’s thinking on the role and status of unions. The June 8 judgment in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia reversed two lower court rulings and found the province’s actions unconstitutional when it used special legislation to remove a number of protections (contracting out, seniority, successorship, job security) from public sector agreements and then used these avenues to transfer the work to private sector contractors who paid much lower wages and benefits.
The Supreme Court set the tone for the understanding of the constitutional status of unions in 1987 when it released the “Labour Trilogy,” three rulings that affirmed that, while individuals have a right of association that protects their actions in joining unions, the unions themselves have no constitutional guarantee for their activities. Even at the time, the thinking in the Labour Trilogy seemed somewhat out of step. Subsequently, other rulings have extended union rights in relation to compulsory membership (Advance Cutting & Coring), strikes (Pepsi-Cola) and legislated exclusion (Dunmore).
This case results from the era of blitzkrieg legislation characteristic of both Mike Harris’s Conservatives in Ontario and Gordon Campbell’s Liberals in British Columbia. In order to keep their opponents off balance, changes were introduced and passed rapidly. The specific statute in question here, the Health and Social Services Delivery Improvement Act, became law three days after it was introduced. And, significantly for the ruling, there was no negotiation with the unions involved.
In gutting the contracts of non-medical employees in the healthcare system in British Columbia, the government’s intention was to streamline the sector and to cut the cost to the taxpayer. The court had sympathy for the aims behind the legislation (the one dissenting justice did so only because he felt that the unconstitutional act of the legislature was largely justifiable). The court was unanimous in finding collective bargaining to be a right and in finding that that right had been violated.
The court makes the distinction between the process of collective bargaining and the outcomes. In overturning the Labour Trilogy, it points out that the formal right of association embodied in membership in a union is an empty one without the substantive right to pursue the goals of collective bargaining. The pursuit, but not necessarily the achievement is upheld:
“The constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment. Section 2(d) of the Charter does not guarantee the particular objectives sought through this associational activity but rather the process through which those goals are pursued.”
Where the government of British Columbia went wrong was in rejecting all other options in favour of the one it chose: “The record discloses no consideration by the government of whether it could reach its goal by less intrusive measures.: As a result, it closed off the possibility of allowing the employees affected by the measures to bargain collectively.
The court, as mentioned above, is sympathetic to the government’s plight. Practically, it would almost certainly have been unable to achieve the changes it did through bargaining, and the court accepts that sterner measures may have to be taken in such cases: “Situations of exigency and urgency may affect the content and the modalities of the duty to bargain in good faith. Different situations may demand different processes and timelines. Moreover, failure to comply with the duty to bargain in good faith should not be lightly found, and should be clearly supported on the record.”
This is where the distinction the court is making between the process and the outcome of collective bargaining is demonstrated. The government is, in most cases, required to make the effort in good faith. If it cannot achieve what is necessary by any other method, only then can it bypass bargaining. The judgment states, “This may permit interference with the collective bargaining process on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks and national crises.”
However, the process of collective bargaining must be respected. The court uses the concept of bargaining in good faith to encapsulate what it means. “Consideration of the duty to negotiate in good faith which lies at the heart of collective bargaining sheds light on what constitutes improper interference with collective bargaining rights.: It also uses surface bargaining, putting forward a bargaining position that the other side cannot accept and refusing to budge from it, as an example of something that would offend the rights of unionized workers.
Interference with the right to bargain collectively must also relate to significant matters. “Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions … may substantially interfere with the activity of collective bargaining … By contrast, measures affecting less important matters … may be far less likely …”
What effects will this ruling have? For the 8,000 or so individuals who were fired from their jobs in the B.C. healthcare system, the province has 12 months to come up with a solution. It seems unlikely that they can be given their jobs back, that Humpty Dumpty can be put back together again. The final result will probably involve a cash payment.
Other unions have been quick to trumpet the ruling as proving the validity of some of their demands. In the case of agricultural workers, part-time college faculty and R.C.M.P. officers denied unionization rights by legislation, the effect of the Supreme Court’s new understanding of labour rights seems pretty clear. The claim by the Alberta Union of Public Employees that sections of the province’s Public Service Employee Relations Act are unconstitutional because they deny interest arbitrators the power to rule on a number of important issues is tantalizing. One thing is certain, governments are going to be held by the courts to a higher standard at the bargaining table. They will need to be able to prove that they are bargaining in good faith and not using their legislative power to short-circuit collective bargaining.
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