B.C. health services law violates charter, says Supreme Court of Canada

Act eliminated several existing collective agreement provisions and precluded future collective bargaining on certain issues

The Supreme Court of Canada has ruled legislation enacted by the British Columbia government that nullified several provisions in its collective agreements with health-care employees are contrary to the Canadian Charter of Rights and Freedoms.

The demand for and cost of health-care services in B.C. had been increasing for years by 2002. The growth of health-care costs in B.C. was triple the growth rate of the economy from 1991 to 2001. Providing adequate health-care had become a major problem for the government and in response to this crisis, it passed the Health and Social Services Delivery Improvement Act on Jan. 28, 2002. It aimed to reduce costs and improve the efficiency in managing the workforce in the health-care sector. It gave health care employers more flexibility in employee relations and changed how they worked under collective agreements. Certain provisions of all collective agreements in the health-care sector were voided and ruled out for all future agreements.

Several health-care unions and the B.C. Government and Service Employees’ Union had informed the government of several areas that concerned them and their desire to discuss them, but no formal discussions were held before the bill was tabled in the legislature. The health services minister telephone a union representative 20 minutes before the bill was introduced.

The most controversial areas of the legislation were clauses which introduced changes to transfers, work site assignment rights, contracting out and status of employees under contracting-out agreements, job security programs and layoffs and bumping rights.

When the act was passed, the unions took the government to court, claiming the provisions invalidating parts of the collective agreements effectively eliminated ­meaningful collective bargaining on those issues. They argued this was contrary to the charter’s protection of freedom of association.

However, the B.C. Supreme Court ruled collective bargaining was not a right included in the scope of the charter’s freedom of association clause. The B.C. Court of Appeal upheld the ruling.

The Supreme Court of Canada had a different take.

The court explained “association for the purposes of collective bargaining” has been a right of Canadians before the charter existed and it makes sense it would be considered part of the freedom of association protections when the charter was created.

“The protection of collective bargaining under the charter is consistent with and supportive of the values underlying the charter and the purposes of the charter as a whole,” the court said. “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 court specified what aspect of collective bargaining falls under the specific protection of the charter’s freedom of association clause.

“What is protected is simply the right of employees to associate in a process of collective action to achieve workplace goals. If the government substantially interferes with that right, it violates the charter,” the court said. It went on to say if a law substantially interferes with the process of collective bargaining and consequentially a union’s ability to influence working conditions through it, it constitutes a breach of the charter.

The court found the act’s sections dealing with transfers, reassignments and contracting out made future collective bargaining over these issues “largely meaningless” since it stipulated collective bargaining cannot alter the employer’s right to do them. The sections unilaterally voided all existing collective agreement clauses limiting employer’s rights to do these activities as well as requirements for the employer to consult the union before implementing them.

The act’s section dealing with layoffs and bumping of junior employees disallowed any provisions dealing with certain aspects of this practice in all collective agreements up until Dec. 31, 2005. Though more limited to the time frame specified, the court found it still interfered with collective bargaining during that time.

The court found the provisions dealing with contracting out, layoffs and bumping in particular were issues “central to the freedom of association.” These are key principles in collective agreements and invalidating them was fundamentally damaging to the collective bargaining process.

The court agreed the government’s purpose of improving the delivery of health-care services was important and admirable, but the act was not “minimally impairing” on the collective bargaining process and its dismissal of past processes and handcuffing of future bargaining were substantially damaging enough to violate the charter’s protection of freedom of association and made the legislation unconstitutional.

The court’s declaration was suspended for 12 months to allow the B.C. government time to deal with the effects of the decision.

For more information see:

Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (S.C.C.).

To read an opinion piece by Gordon Sova, editor of CLV Reports, on this decision, please see B.C.'s special labour legislation unconstitutional, says Supreme Court.

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