Court finds RCMP officers have right to form associations, but just not necessarily unions
Two recent labour relations cases involving freedom of association underscore the lack of clarity still existing around this right and the need for the Supreme Court of Canada to ultimately define it more clearly, according to Sara Slinn, a labour expert with Osgoode Hall Law School at Toronto’s York University.
Earlier this month, the federal government won its appeal of a 2009 court decision that would have allowed RCMP members to form a union.
Ontario’s Court of Appeal rejected the lower court’s finding that it was unconstitutional for the RCMP to prevent members from forming a labour association. The court pointed to the existence of a legal fund for private legal representation as well as a staff relations representative program, and noted RCMP members have also been allowed to form their own voluntary associations.
Meanwhile, two unions representing post-secondary employees in British Columbia have launched a court challenge of a government bill they say bans union activists from sitting on college and university boards.
The provincial government says the legislation would allow boards to deal with conflict of interest situations where someone representing an institution as a board member is also a union executive sitting at the bargaining table.
These cases demonstrate the confusion that still exists more than a year after the Fraser decision narrowed the scope of freedom of association, says Slinn.
“There’s a widespread belief that if it’s not a retraction of the broader scope allowed under B.C. Health Services, then it has certainly placed boundaries,” she says.
In April 2011, the Supreme Court of Canada ruled agricultural workers in Ontario could not form a union. In Ontario (Attorney General) v. Fraser, the Court ruled the workers were protected under the Agricultural Employees Protection Act, which permits the workers to organize in “employees’ associations” and make “representations” to their employers.
Fraser set a “very different” threshold test for freedom of association, which has “emboldened” governments and led to more litigation from worker groups, Slinn adds. That threshold is whether legislation makes it “impossible” for workers to act collectively.
“That makes it very difficult for a party to get in a position of violation of freedom of association,” she says. “If we’re going to say that (freedom of association) applies in the workplace, then we need to have some clarity so it’s a meaningful right for workers.”
In the RCMP decision, the Ontario Court of Appeal suggested the Supreme Court of Canada will eventually have to deal with two new labour law questions raised by this case: Does the right to collective bargaining guarantee workers the right to an association of their choosing? And, does it require the vehicle for dealing with their collective concerns be independent of management?
“If (the right to freedom of association) doesn’t even cover independent representation, then you have employer domination,” says Slinn. “Then it’s the employer who controls the representation.”
Although Fraser left, “a lot of stuff open,” that may be a good thing, says James Morton from the firm Steinberg Morton Hope and Israel.
“The Supreme Court decisions have been clear that freedom of association doesn’t mandate an outcome or even a pathway to an outcome, but it does guarantee the right to association,” he says.
In an area as complex as labour law, it’s important the Supreme Court of Canada not dictate requirements for how to deal with every issue, Morton says. He notes the highest court has good reason to be cautious about limiting the scope of freedom of association.
“My sense is the Supreme Court is concerned that if workers can choose associations freely, it could lead to competing associations — and lead to the end of collective bargaining if there are multiple voices representing workers,” Morton says. “The court will deal with issues as narrowly as it can and avoid over-arching decisions.”
The courts are also well aware of the dangers of unintended consequences, which is an especially big risk in labour relations, he adds.
If workers have their choice of representation, for example, employers could end up dealing with five employee groups making it difficult and expensive to reach a collective agreement, Morton says.
However, there is an important distinction in the recent challenges around freedom of association, Slinn notes. In the public sector, the employer in each case has multiple roles: employer, budget manager and legislator. Those competing interests need to be considered carefully, she says.
