Ontario's highest court has released a precedent-setting decision on the scope of the right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter).
In its decision in Independent Electricity System Operator v Canadian Union of Skilled Workers, released on May 8, 2012, the Ontario Court of Appeal confirmed that the Charter does not guarantee employees work opportunities or guarantee trade unions a right to their preferred model of collective bargaining. The court also confirmed that the Charter protects individual rights and not the rights of trade unions as institutions.
Construction industry collective bargaining
The Ontario Labour Relations Act, 1995 (the Act) has special
rules applicable only to construction companies and trade unions
operating within Ontario's construction industry. A series of
decisions from the Ontario Labour Relations Board (the Board)
expanded the application of these special rules to encompass many
consumers of construction services, such as school boards,
municipalities, banks and retailers. The effect of this expanded
application was to effectively guarantee that any work opportunity
created by a consumer would be given to particular trade unions
without any open tendering or competitive process.
In 2000 the Legislature responded to these difficulties by amending the Act to create the definition of "non-construction employer" – essentially, an employer who does not carry on business in the construction industry for profit. A non-construction employer is permitted to apply to the Board and ask that it be declared strictly a consumer of construction services and thus owing no monetary or collective bargaining obligations to construction trade unions. Several construction industry trade unions challenged the non-construction employer provisions of the Act, alleging that they substantially interfered with their members' right to freedom of association pursuant to section 2(d) of the Charter in that their members were deprived of guarantees of future work.
The court's decision
In a unanimous decision, the Ontario Court of Appeal affirmed the constitutionality of the non-construction employer provisions of the Act. The court found that the Legislature was entitled to relieve non-construction employers from the restrictions on open tendering that are prevalent in the construction industry, and to draw a distinction between sellers and customers of construction services for that purpose.
The court's decision also provides significant commentary on the scope of associational rights under the Charter, relative to the economic considerations inherent in the employment relationship. In this regard, the court held that the Charter does not guarantee employment opportunities to members of trade unions. The court also observed that despite the loss of guaranteed work, the unions' members retained the right to compete for any potential work opportunity which may arise.
In addition, the court confirmed that the Charter protects individual rights, not the rights of trade unions. In this case, although construction trade unions would see their bargaining rights terminated with respect to a non-construction employer, their individual members could continue to bargain collectively with the large number of construction companies that actually employed them. Moreover, the court reiterated the established principle that while employees do have a right to participate in a collective bargaining process, they do not have a constitutional right to participate in any particular model of collective bargaining.
Ontario's highest court has confirmed that construction industry trade unions have no constitutionally protected right to bargain with employers who are not construction companies. In so doing, the court has affirmed the Legislature's right to promote competition and open tendering for construction work in Ontario, while affirming the role of the Charter in protecting individual, not organizational, rights.
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