Mounties given right to unionize

Court says RCMP has right to negotiate, not just consult
By Shannon Klie
|Canadian HR Reporter|Last Updated: 05/05/2009

Canada’s largest police force has the right to unionize, according to a ruling by the Ontario Superior Court.

Under the current labour relations model, the RCMP’s 22,000 rank and file are given a voice on workplace conditions and policies through a staff relations representative program (SRRP).

However, the SRRP, which came into existence in 1974, was meant to be a mechanism for consultation, not a vehicle for collective bargaining, wrote Justice Ian MacDonnell in his 37-page ruling released April 6. As such, the SRRP breaches the Mounties’ freedom of association, which includes the right to collectively bargain, under the Charter of Rights and Freedoms.

Justice MacDonnell’s ruling in the case — brought before the court by the Mounted Police Association of Ontario and the B.C. Mounted Police Professional Association — will come into effect in 18 months to give the federal government time to develop a framework for collective bargaining.

However, there is still a chance the government could appeal the decision, said Charles Momy, president of the Canadian Police Association, an intervener in the case. Even if there’s no appeal, there’s no guarantee the members will choose to unionize.

“Obviously some kind of a process or mechanism has to be established to replace the SRR program. Is that an association? We’re certainly hoping that’s what it means and that’s what the members will avail themselves of,” he said.

But the majority of members are probably open to the idea of belonging to an association given the RCMP’s recent pension fund scandal, as well as its autocratic management style and wage rollbacks, said Momy.

The RCMP’s officers work as municipal, provincial and federal police across the country. Having one association or union represent such a large workforce, with diverse concerns, presents significant challenges, said Henry Dinsdale, a partner at Toronto law firm Heenan Blaikie.

For example, guaranteeing emergency backup at Toronto’s Pearson Airport is much easier than guaranteeing it in Iqualuit, he said.

“There are very disparate working conditions that officers have to go to work everyday under,” he said. “Having broadly based terms and conditions of employment right across the country creates some unique challenges for whatever association or union ends up representing the members of the RCMP across the country in a single, national bargaining unit.”

While the problems can be overcome, the RCMP will still present a very complex bargaining unit to represent, said Dinsdale.

However, Momy did not foresee the same kind of challenges. He pointed to the Ontario Provincial Police, which has a similar structure to the RCMP, albeit on a smaller scale, with rural and city policing and full- and part-time staff.

“I would see this as being a very simple proposition,” he said.

Collective bargaining a constitutional right

The ruling was based on a trio of cases that have elaborated the constitutional right to freedom of association to include a more robust guarantee of a right to collective bargaining.

Taken together, Dunmore v. Ontario (Attorney General), B.C. Health Services and Fraser v. Ontario (Attorney General) “establish that members of the RCMP have a constitutional right to form an independent association for labour relations purposes, free of management interference or influence,” wrote Justice MacDonnell.

The rulings also establish that the freedom of association guaranteed to RCMP members includes the right to a process of collective bargaining, he found.

The SRRP is not an independent association formed or chosen by members of the RCMP, stated Justice MacDonnell. The interaction between the SRRP and management cannot be described as collective bargaining because it is solely a consultative relationship, with the ultimate decision-making power resting in the commissioner’s hands, he ruled.

“The members have never been given the opportunity to decide whether it is the body within which they wish to associate for labour relations purposes,” wrote Justice MacDonnell. “The agreement with the commissioner continues to make clear that, at the end of consultation, ‘final decisions rest with management.’”

The government’s position is that unionization and collective bargaining would make it impossible for the RCMP to ensure a stable, reliable and neutral police force.

However, the RCMP is the only Canadian police force without a collective agreement to regulate officers’ working conditions. Most of those agreements recognize it is not in the public interest to allow police officers to strike and, therefore, mandate interest arbitration to resolve bargaining impasses, stated Justice MacDonnell.

The RCMP is different from other police forces in the country, he acknowledged, but the government failed to show why those differences require greater limits on the freedom of association of RCMP members.

“The importance of stable, reliable, neutral and uninterrupted service is common to all police forces. Why does the wider jurisdiction of the RCMP or its status as a uniquely Canadian institution make the labour relations models in place for other police forces inappropriate?” he wrote.

New structure of employee relations

Ruling the SRRP unconstitutional will force the RCMP to create a new structure of employee relations that’s not based on consultation, said Dinsdale, “but based more on some of the principles of collective bargaining where employees have a true right to engage in negotiations on terms and conditions of employment with their employer, as opposed to simply a right to consult,” he said. “What form that takes remains to be seen.”

The government has not yet decided how to proceed.

“The decision has just been rendered and we will review it carefully to determine the appropriate course of action required in the near future,” said Pierre-Alain Bujold, a spokesperson for the Treasury Board, which is in charge of the federal civil service and responsible for negotiating labour agreements with public service unions.

Regardless of how it all plays out in the RCMP, the ruling is yet another example of the courts trying to figure out how to deal with the idea of collective bargaining being a constitutionally protected right, said Dinsdale.

“We’re right now very much in a state of flux,” he said.

“The courts are going to be grappling with where to draw the line. What’s becoming clear from these decisions is the line has to be a very carefully crafted and finely drawn line between providing a system of labour relations that works from a business perspective but is adequate to withstand constitutional scrutiny.”

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