Charter Now Protects Collective Bargaining — What Does It Mean For You?

The Supreme Court of Canada recently released a landmark decision, Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, which concluded that collective bargaining is constitutionally protected under the Canadian Charter of Rights and Freedoms. The decision reverses 20 years of prior jurisprudence by the court, and unions have hailed it as a huge victory. This article will review the background and key points of the decision and conclude with implications for you as an employer.

In 2002, the British Columbia government passed legislation overriding certain collective agreement provisions in the health care sector regarding contracting out, layoffs and bumping. Thousands of union employees lost jobs and benefits under these collective agreements as their positions were contracted out to private — often non-union — providers.

The unions challenged the legislation in court, claiming that the government had violated the constitutionally protected right to collective bargaining. As the Supreme Court of Canada had already ruled in past decisions that collective bargaining was not a constitutionally protected right, the unions lost their claims in the lower courts.

In the Health Services decision, the Supreme Court of Canada changed the law and ruled that the Charter guarantee of freedom of association does protect the procedural right to collective bargaining.

The court limited the constitutional protection of collective bargaining in important ways. Most importantly, the right is to a process; it does not guarantee any certain result. Employers and unions remain free to reject each other’s demands and, failing agreement, to strike or lockout in accordance with applicable legislation.

Also, the court held that only "substantial interference" with the activity of collective bargaining is prohibited, meaning interference that seriously undercuts or undermines the activity of workers joining together to pursue collective bargaining. To determine whether a government measure constitutes "substantial interference," the court will look at (i) the importance of the matter affected to the process of collective bargaining and (ii) the manner in which the measure impacts the collective right to good faith negotiation and consultation.

In the Health Services case, the government gave only 20-minutes warning to the unions before the legislation was introduced. The decision states that, if proper consultation and negotiation takes place, there may be no violation of the Charter even if the result of a government measure might be seen to be important to collective bargaining concerns. Thus, the duty to consult, negotiate and bargain in good faith was recognized as being fundamental to the process of collective bargaining.

What does this decision mean for other employers? In light of the claims of a ‘huge victory’ by unions, it’s important to start with what the decision does not mean.

It does not mean that non-government employers must scrutinize their conduct in light of the Health Services decision. The Charter applies only to state action, and the court in Health Services was reviewing the action of the B.C. government in passing legislation that took away collectively bargained rights. The decision is of key importance to governments, as legislators and employers. Governments will likely be required to negotiate and consult before enacting legislation overriding collective agreements or passing ‘back-to-work’ legislation. Non-government employers will continue to bargain collectively in accordance with the legislation in their jurisdiction.

It does not mean the imposition of a new or unfamiliar process. The court’s decision simply gives constitutional protection to the process of negotiation and bargaining that already occurs between employers and unions across the country.

It does not mean a guaranteed or favourable outcome in bargaining for unions. Only the process is protected, and government employers can still refuse to meet union demands, provided that good faith bargaining and negotiation occurs.

Notwithstanding what it does not mean, the decision is significant. The duty to bargain in good faith now has Charter ‘teeth,’ which could lead to a more stringent review of bargaining tactics and strategy by labour boards. Unions may also use the decision as a foundation to attack existing government processes or legislation that they feel interferes with collective bargaining.

Unions are also more likely to rely on international labour standards and International Labour Organization declarations to support their positions. The court made specific reference to international law in coming to its decision.

Finally, governments may be less willing to step into private-sector labour disputes. The court was most concerned with the government’s failure to consult with the unions before legislating. We can expect a government to ensure alternatives to ‘back-to-work’ legislation are discussed before interceding in a private-sector labour dispute.

While the Health Services decision is significant, it does not confer substantive benefits on unions or impose new requirements on non-government employers. The decision gives constitutional protection to the process of collective bargaining that employers adhere to in normal labour relations on a day-to-day basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.