The first month and a half of 2015 saw the Supreme Court of Canada (SCC) come down with two decisions that will significantly change the scope of labour law in Canada. In both the Mounted Police Association and the Saskatchewan Federation of Labour decisions, the Supreme Court has entrenched a quite robust right to collective bargaining and a right to strike within Section 2(d) of the Canadian Charter of Rights of Freedom (the Charter).



The SCC first tackled the issue of labour rights and the Charter in 1987, with three decisions that many in the labour movement had hoped would entrench the right to strike and collectively bargain within the new constitution. However, the Labour Trilogy (as the decisions would become known as) quickly threw water on this hope, affirming that the right to association as expressed in Section 2(d) of the Charter was exclusively for individual activities and collective expressions of these activities. Purely collective rights that had no individual expressions (such as union bargaining) were not covered.



Prior decisions

Things began to change in 2001, when the SCC struck down an Ontario law that excluded agricultural workers from the labour relations system. In Dunmore, the SCC concluded that if government legislation interfered with collective activities, even those without individual expressions, it could amount to a breach of Section 2(d) of the Charter.



Dunmore, however, expressly rejected the idea that “collective bargaining” was a Charter associational right. Judicial movement in this regard had to wait until 2007 with the BC Health Services decision. The right wing Liberal provincial government had legislatively enacted extensive changes to the collective agreements of health workers, with minimal effort to consult the bargaining agents in the sector. In striking down the BC legislation, the SCC concluded that Section 2(d) guaranteed workers a “process through which (their associational) goals are pursued,” including a right to “unite, to present demands…collectively and to engage in discussions in an attempt to achieve workplace goals.”



Many in the labour movement believed that this was a watershed moment, with collective bargaining rights achieving constitutional legitimacy. However, the SCC tempered this enthusiasm in the 2011 Fraser decision, which once again challenged Ontario legislation that excluded agricultural workers from the Labour Relations Act, although providing these workers minimal protections to make associations and collectively present demands to employers. In upholding the legislation, the SCC concluded that as long as laws do not make it effectively impossible for workers to achieve workplace goals through collective activity there is no breach of Section 2(d).



Collective bargaining

Many assumed that the SCC would take a pause from dealing with labour issues, but with two groundbreaking decisions things have once again been turned on their head. In Mounted Police Association, employees of the RCMP were challenging provisions of the Public Service Labour Relations Act, which denied workers the right to form a union and instead offered “Staff Relations Representation Program” that had no authority to bargain key workplace issues (like wages) and whose independence from the employer was questionable.



In its decision, the SCC firstly concluded that the very high standard of “effective impossibility,” set out in Fraser to determine whether a law was a breach of Section 2(d), had confused matters. Instead, moving forward government legislation that “substantially interfered” with workers’ abilities to pursue collective workplace goals would be deemed unconstitutional.



The Court also made important pronouncements about what kind of interference offended the Charter’s associational rights. Specifically, legislation that undermines the independence of workers to make choices about their representation in pursuing collective workplace goals could be in breach of Section 2(d):“If employees cannot choose the voice that speaks on their behalf, that voice is unlikely to speak up for their interests. It is precisely employee choice of representative that guarantees a representative voice. Similarly, if employees must ‘have confidence in their spokespersons’ … the way to ensure such confidence is through a sufficient degree of employee choice in the selection of representatives.”



This principle could have significant impact on the Nova Scotia government’s Bill 1, which is attempting to transform the health sector’s bargaining structures by reducing the number of unions representing health care workers. If this Bill’s efforts to force is deemed to substantially interfere with workers choice of representation in such a way that undermines the independence of the representation and workers’ pursuit of workplace goals, the legislation may breach Section 2(d).



Right to strike

Just as significant as Mounted Police Association, is the Saskatchewan Federation of Labour (SFL) decision. This case emerged after a newly elected right wing government in Saskatchewan introduced legislation that allowed the government to unilaterally declare workers an essential service and prohibited these designated workers from going on strike. In addition, the legislation provided no alternative mechanism to resolve bargaining impasses, such as binding arbitration.



In a 5-2 decision, the Court finally overturned the Labour Trilogy determining that “the right of employees to strike is vital to protecting the meaningful process of collective bargaining within s. 2(d)” and when legislation interferes with this right there must be a meaningful dispute resolution mechanism to take the place of a strike.



In one the most powerful passages of this decision, Justice Rosalie Abella (who wrote the decision for the majority) challenged the dissent’s opinion that both employee and employer goals should be considered when assigning rights under Section 2(d): “In their dissent, my colleagues suggest that s. 2 (d) should not protect strike activity as part of a right to a meaningful process of collective bargaining because ‘true workplace justice looks at the interests of all implicated parties’ (para. 125), including employers. In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying. It drives us inevitably to Anatole France’s aphoristic fallacy: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”



The decision also posed a warning for legislation that too quickly and too broadly define what is an essential service, whose employees could have their right to strike limited. The decision strongly suggests that essential services (at least in the context of the public sector) are those jobs that are required to prevent a “clear and imminent threat to the life, personal safety, or health of the whole or part of the population.” And even for those jobs, the SCC indicates that designating what jobs fall under this cannot be a unilateral decision of the employer and that there should be an impartial review mechanism to challenge essential service designations.



This decision will definitely have ramifications moving forward. If the Harper government chooses to enact back to work legislation, for example, against UNIFOR workers at CP Rail within hours of going on strike it could be argued that this is a substantial interference in their right to strike. The justification that such a strike would have negative repercussions on the economy appears to fall outside the realm of jobs that the Court believed governments could designate so essential that their right to strike could be restricted, since a CP Rail strike is highly unlikely to cause a clear and imminent threat to life, personal safety or health of the population.



Mobilization

While these decisions are positive and open the door for the labour movement, relying on them to protect our rights through litigation instead of mobilization should be cautioned. Even if the Conservative’s back to work legislation can be challenged and Bill 1 in Nova Scotia could be struck down, litigation takes a long time and pro-worker outcomes are never guaranteed. By the time the courts settle the issue, workers may have already accepted concessions under threat of bad legislation.



At the end of the day, these decisions should embolden organized labour, knowing that their right to collectively bargain and to strike are constitutionally enshrined. But making these rights truly benefit employees will require unions to mobilize their members to challenge anti-union legislation. A litigation strategy can never replace a rank-and-file approach, and only the latter can truly push back against austerity and attacks on working conditions.