The Supreme Court of Canada released a judgment last Friday that strengthens and
expands the protection of freedom of association under s. 2(d) of
the Charter of Rights and Freedoms. The
main issue in this case was the constitutionality of the employee
association scheme for members of the RCMP, who are excluded from
public sector federal labour relations legislation. Instead,
members of the RCMP typically advance their workplace issues
through the Staff Relations Representative Program
The majority of the Court struck down the impugned legislation
as violating s. 2(d) of the Charter. Although the specific
result of this decision has little direct impact on most employers,
as most employers' employees have access to collective
bargaining, many comments from the Court exemplify a broadening
perspective on freedom of association, thereby strengthening
employees' rights to collective bargaining.
We have also heard concerns about the public safety issues
emphasized by the media with respect to this case. While it is true
that the RCMP was forbidden from collective bargaining to preserve
the "loyalty of the members and their obedience to superior
orders, which could have been disturbed by allegiance to fellow
workers", practically speaking, essential services legislation
alleviates some of these concerns. Even if members of the RCMP were
to unionize, and negotiations deteriorated and lead to a strike,
essential services legislation prevents danger to the health or
safety of the public. For example, in BC, many of the core
emergency services such as nurses, municipal police, and
firefighters are unionized. In the federal sector, border guards
are unionized. Also, this ruling from the Supreme Court of Canada
does not automatically give members of the RCMP the right to
unionize under federal labour relations legislation: the government
has one year to legislate an alternative scheme that does not
contravene s. 2(d) of the Charter.
Notable quotes from the majority reasons about freedom of
... s. 2(d), viewed purposively, protects three classes of
activities: (1) the right to join with others and form
associations; (2) the right to join with others in the pursuit of
other constitutional rights; and (3) the right to join with others
to meet on more equal terms the power and strength of other groups
Individual employees typically lack the power to bargain and
pursue workplace goals with their more powerful employers. Only by
banding together in collective bargaining associations, thus
strengthening their bargaining power with their employer, can they
meaningfully pursue their workplace goals.
... the right to a meaningful process of collective bargaining
will not be satisfied by a legislative scheme that strips employees
of adequate protections in their interactions with management so as
to substantially interfere with their ability to meaningfully
engage in collective negotiations.
Hallmarks of employee choice in this context include the
ability to form and join new associations, to change
representatives, to set and change collective workplace goals, and
to dissolve existing associations.
The function of collective bargaining is not served by a
process which is dominated by or under the influence of
Independence and choice are complementary principles in
assessing the constitutional compliance of a labour relations
The search is not for an "ideal" model of collective
bargaining, but rather for a model which provides sufficient
employee choice and independence to permit the formulation and
pursuit of employee interests in the particular workplace context
Choice and independence do not require adversarial labour
relations; nothing in the Charter prevents an employee
association from engaging willingly with an employer in different,
less adversarial and more cooperative ways.
Mr. Justice Rothstein was the lone dissenting voice on the
bench. His ardent reasons include many messages which employers may
agree with, such as: "by relaxing the standard required to
find a s. 2(d) violation, the majority takes freedom of association
far beyond the ordinary meaning of those words and well beyond what
the concept of 'association' has been held to
include"; "[t]he language used by the majority in this
case creates greater rights, and imposes greater restrictions on
the government, than either a plain or generous reading of s. 2(d)
can logically provide..."; and "[i]mplicit in the
majority's articulation of meaningful collective bargaining is
the view that management is the enemy of the employees and the only
way in which employees may improve their position is through
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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