Collective bargaining is a right, top court rules [Canada]
Offline Decision strikes down controversial B.C. legislation that had contracted out work, axing thousands of jobs
KIRK MAKIN
JUSTICE REPORTER: With a report from Canadian Press
June 9, 2007
The right to collective bargaining in the workplace is protected by the Charter of Rights, the Supreme Court of Canada ruled yesterday, in a landmark judgment that left the labour movement flabbergasted.
In a 6-1 ruling that served notice on governments that they cannot save money by arbitrarily choking off workers' rights, the majority struck down a controversial B.C. law that had contracted out work in the health-care and social-work sector, throwing thousands out of their jobs.
"The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work," Chief Justice Beverley McLachlin and Mr. Justice Louis LeBel wrote.
The court suspended the effect of its decision for one year to give the province time to pass acceptable legislation.
"This is huge; this is unbelievable," said B.C. lawyer Joseph Arvay, who represented a coalition of unions and individuals affected by the decision. "I'm too excited to talk like a normal human being. This is going to change the landscape for collective bargaining for every union across the country."
Mr. Arvay predicted legal challenges from groups who are not permitted to bargain collectively, such as agricultural workers and the RCMP. It is too early to know what recourse will be available to thousands of union members who lost their jobs as a result of the B.C. legislation that has been struck down, Mr. Arvay said.
"We have seen 20 years of governments running roughshod over collective bargaining rights," said Steven Barrett, a lawyer for the Canadian Labour Congress. "The court has recognized that without constitutional protection, governments are simply going to disrespect collective agreements."
But Ken Thornicroft, of the University of Victoria business department, said the ruling is "far from a complete victory" for the labour movement and may be interpreted by the courts more narrowly than union leaders are predicting.
For the B.C. government, Health Minister George Abbott, said: "This judgment is not appealable, hence we need to sort out how it is that we will reconcile public policy with the judgment that's been rendered by the Supreme Court."
Dr. Thornicroft noted that most of the legislation survived the Supreme Court challenge intact with the court finding that four of the five infringements the unions complained about were constitutionally justified.
"It may well be that this government will be able to meet its legislative objectives with, I would say, tweaking, rather than wholesale revision of their legislation," Dr. Thornicroft said.
In an extraordinary move, the court majority said it no longer had confidence in its previous rulings that had virtually extinguished any hope the labour movement had of using the Charter as a litigation tool.
"The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context," said the ruling, which was also signed by Mr. Justice Michel Bastarache, Mr. Justice Ian Binnie, Mr. Justice Morris Fish and Madam Justice Rosalie Abella.
The court's astonishing about-face ranks with its 2004 Chaouilli ruling in terms of its unexpectedness, coming from a bench that has carved out a reputation as conservative, pragmatic and uneasy about using the Charter of Rights to disturb the status quo. The Chaouilli decision, named after the doctor who initiated the case, struck down Quebec's ban on buying private insurance for medical services, saying it contradicted the provincial Charter of Rights.
Rather than being perceived as a startling reversal, however, the majority said that yesterday's decision "may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining."
Known as the Health and Social Services Delivery Improvement Act, the B.C. bill touched off a firestorm of protest by playing havoc with key rights that had been negotiated under collective agreements, including work transfers, contracting out, job security, layoffs and seniority.
The key to whether legislation can pass Charter muster in future will be whether it amounts to "substantial interference" with associational activity in the workplace, the majority said.
*****
THE LABOUR TRILOGY
In the early years of Supreme Court jurisprudence under the Charter of Rights, the court dealt with several cases involving organized labour. Three particular cases emphasized the court's determination to prevent collective bargaining from being granted protection under the Charter:
Reference re Public Service Employee Relations Act (Alta.), 1987: "Freedom of association, however, does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. The group can exercise only the constitutional rights of its members on behalf of those members. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association."
PSAC V Canada, 1987: Per Beetz, Le Dain and La Forest JJ.: "For the reasons expressed by Le Dain J. in the Reference re Public Service Employee Relations Act (Alta.), [1987], the guarantee of freedom of association in s.2(d) of the Canadian Charter of Rights and Freedoms does not include a guarantee of the right to bargain collectively and the right to strike. Accordingly, the Public Sector Compensation Restraint Act did not violate s. 2(d) of the Charter." From majority reasons of Mr. Justice Jean Beetz, Mr. Justice Gerald Le Dain and Mr. Justice Gérard La Forest.
RWDSU v. Saskatchewan: Per Beetz, Le Dain and La Forest JJ.: For the reasons expressed by Le Dain J. in the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, the guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include a guarantee of the right to bargain collectively and the right to strike. Accordingly, The Dairy Workers (Maintenance of Operations) Act did not violate s. 2(d) of the Charter.
Kirk Makin
http://www.theglobeandmail.com/servlet/story/LAC.20070609.SCOC09/TPStory/National
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I've never had a problem with unions or collective bargaining, it simply makes sense that people get together to negotiate as a whole.
At the same time, I do think often times unions price themselves out of work and can be just as ruthless as their employers.
In skilled labor positions, the unions can demand better pay - to a point. At some point it simply becomes more economical for the company to ship the jobs overseas or train new employees and axe the striking workers - and I don't have a problem with that either. It would seem that Canada may have a problem with such turn-about and fair play though, I honestly don't fully see the ramifications of the decision.
Why the government needs to get involved in such things is still beyond me, persoanlly.
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The decision is in response to a suit brought by healthcare workers in my Province after the then newly elected Liberal government tore up existing contracts negotiated between the previous government and the union. The Supreme Court ruling simply states that the the Provincial government does not have that right.
The reasoning behind the governments' removal of said contract was to intsitute a dogmatic push to privatization of our Provincial health care system. As we've been under this move to privatization for a number of years now, we're seeing the erosion of health care, the reduction of trained staff, rolling contracts costing the taxpayer more and the degredation of services to a point where we are actually seeing our hospitals operating in conditions below legislated standards.
In the last two years I have had two close friends go through the health care system with serious illnesses. From one to the other I've seen the continued reduction in nursing, cleanliness, food quality and overall care. It's sad to see, but with this ruling there is hope that the Province will ultimately have little choice but to move to reinstate the contract with healthcare workers. Ultimately it's now up to the Federal government to pressure the Province. Withholding transfer payments are one way they can exert pressure.
There are two seasons in Canada, Hockey season and not-Hockey season.
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I think what is questionable is the right of unions to establish a monopoly on the labour supply for a given company. What right do unions have to prevent potential hirees from negotiating their own terms of employment with the company, outside the collective agreement? So far, unions have just grabbed that right through intimidation, but I don't see that it's anything the Charter would protect.
I wish the union movement could somehow cut itself free of its socialist roots and start looking for ways to protect the interests of workers AND promote the success of industry.
Lazy is a word we use when someone isn't doing what we want them to do.
- Dr. Joy Brown
This has nothing to do with the "union monopoly" bogeyman. Interesting how a strawman argument is set up in a political discussions as well. The ruling states that the Provincial government has no right to tear up a contract that was entered into in good faith. This would apply to non-union and union workers as well as business entities entering into contractual agreements with the government.
Implying anything more is taking a leap of faith into a position unsuported by the facts.
There are two seasons in Canada, Hockey season and not-Hockey season.
Canada: 16% Atheist and growing.
My, touchy touchy.
Easy, tiger, my comments weren't meant to be addressing the specific story posted but just a more general comment on unions. You can cite me for being off-topic if you want, but there was no strawman presented.
Obviously the government was out of line when it tore up the contract and obviously groups of workers have the right to get together and bargain collectively and make binding agreements with management. I just wish they'd a) use that power more intelligently and b) not presume to dictate that everyone at the company obey the agreement whether they were party to it or not.
Lazy is a word we use when someone isn't doing what we want them to do.
- Dr. Joy Brown
Anyone in BC should have just about as much appreciation for Union vs Government battles as anybody in the world. The Government going toe to toe with every union in the province isn't all that far in the past, and isn't neccessarily fully resolved.
Unions idealisticlly do provide a great service and should be used. The problem is that Unions have become too comfortable and abuse their legal protection.
I am going to generalize a bit here: Union workers do not encourage exceptional work. They encourage staying in a job for a long time. They are large corporations making money off of members who don't want the stress of dealing with their own negotiations and instead pay a company insane amounts of money to do it for them often costing them more money than they realize.
The number of unions that go out of work in BC for lockouts or Strikes of various flavours is comical. They lose so much money fighting for a slightly bigger contract and never think about the money that they will never get back while they are getting paid crappy wages on the picket line. Most times it would take them decades of thier raise to compensate for the money lost.
I am so glad I work in technolgy where Unions have not managed to make a dent yet. I don't think I could handle working in a Union shop. Not being able to negotiate my own salary, not being able to earn raises or promotions as a result of not being around the company long enough despite my qualificiations and work ethic.
I know I'm kinda flopping around topics here but Unions disgust me. They make gigantic money on the back of casual labourers and the labourers are often times too ignorant to realize what's going on as they pay out a fortune into a company. So many unions try to fight the employer on every possible occasion that it hurts the employer as a business, which ends up hurting the union members of course if it ends up involving layoffs.
If Unions want to continue to survive in this country and in others they are going to need to learn how to work with companies in an effort to see an increase in revenues, find a way to promote good work over service, and start becoming a partner to employers rather than an opponent.
Union workers need to start realizing that when a Union tells you to go on strike, it usually is not affecting their salary and the union companies are fightiing purely for a contract not for the ultimate well being or fighting in the best interests of the company or the individuals.
I sure am glad I'm not in a union. I doubt I'd make much more than half what I do salary wise if I was in a union shop.
And don't even get me started on Unions that Strike at the expense of essential services like nurses and teachers who both seem to have hard-ons for strikes.
Good points Tarpan. I think its revealing that provinces like BC and Quebec have made it very easy to organize a union in any workplace, yet so few workers try to do so any more. If the union idea is so good for the workers, why isn't everyone dying to try it?
Of course, anyone in the auto industry in Ontario would be crazy to want to be in a union shop any more, unless they were with the Big Three. A common tactic we see here is for the union leadership to pick a huge fight with management at some smaller supplier (last time it was Navistar in Chatham) right ahead of their Big 3 negotiations. They force a strike, put everyone out on the picket line for weeks, make as much noise and lawsuits and traffic trouble as they can, then go back to the table AFTER the Big 3 negotiation starts and settle for exactly what everyone knew the deal was going to be in the first place. Why? So they can put on a big display of union solidarity and toughness to show the Big 3 that they have no chance of breaking the union in a protracted battle.
This is great service for the Big 3 workers: they have the ground nicely prepared for their negotiations. But what do the workers who actually went on strike get out of it? Weeks of strike pay, soured relations with management, injuries and deaths on the picket line (no I'm not exaggerating - a guy got run over in Chatham last time) and a weakened plant that is now closer to going tits up than it was at the start of the strike. Essentially, the union bosses sacrifice the workers at the smaller plants for the sake of the workers at the bigger plants. Why? Follow the money. The big plants pay the big dues. A one-dollar an hour pay raise across the big plants will financially justify losing the smaller plant altogether in terms of union dues. Too bad for the smaller plant workers, who lose everything and face dim prospects of getting a job at the larger plants due to union seniority rules.
Lazy is a word we use when someone isn't doing what we want them to do.
- Dr. Joy Brown
Gah, I totally forgot that I had posted here.
Tarpan, Tilberian, one point. Insert "big business" for union and the same arguments are made. Heck, for a lot of it you can insert government in there as well. Each has an agenda and each promotes it at the expense of the worker.
From my perspective as a small business owner, I've had to deal with union shops, big business bureaucracy, and governmental insincerity. They all create their own barriers and restrictions, but we ultimately need each of them, if for no other reason than as a system of checks and balances in the pursuit of commerce.
In my experience, to say that one entity has any greater influence over a particular segment of commerce is as simplistic as a theist claiming all atheists are baby-eaters. Such proclamations not just gross misconceptions, but are seemingly intended as a demonization and refutation through emotional appeal of the target entity.
Constructing arguments against unions while ignoring the goings on of destructive corporate movements (offshore production with reduced environmental controls, non-existant safety regulations, etc.) and governmental bullying (ripping up contracts) is disingenuine at best, blatantly and willfully ignorant at worst. While the arguments against unions can be justified, no argument should be presented outside of the context of the whole, which includes the afformentioned entities. None of these exists without the other vis a vis commerce and any discussion or argument about one is woefully incomplete without full understanding and acknowledgement of the others within the context of said argument.
In other words, you really can't talk about one with out talking about the others and their relation to the topic at hand.
Cheers
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I have to agree with that. As a union member I'm well aware of their problems. But I'm also aware of the problems with the company that the union counterbalances.
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And each is bad when it does so! However, I single out unions for a special level of hypocrisy since their whole reason for existance is supposed to be the defence of the worker. Corporations obviously have an interest in exploitation and governments are beholden to a number of potentially conflicting interests. Unions are always claiming the moral high ground and it's getting sickening. Plus, we can vote out governments and go work for someone else. Unions control the entire national workforce in certain industries, and thuggishly enforce their monoploy to force anyone working in those industries to toe the line. If you happen to be a worker in that industry, it is impossible to evade the union without changing careers.
I am, however, aware of the fact that unions evolved into this position because of previously existing monopolies established by unholy alliances of big business and government. We have a particular problem with that in Canada because we had to set up a lot of Crown Corporations after WWII in order to keep pace with modernization in the US. However, business and government have been correcting that state of affairs for the last twenty years, while unions stubbornly cling to their policies from 1970.
Agreed. But I think that corporations and even governments are fulfilling their obligations better than unions today.
And you are trying to say that unions are less bad because there are other entities that are worse. This is logically flawed.
OK. Why don't you tell us why the wrongdoing of corporations and governments makes it OK for unions to monopolize whole workforces, force workers to work in those industries on their terms, screw over less important plants and people with less seniority in the name of scoring more dues, make unreasonable demands on industry with no regard for the industry's continuing competitveness and fail, totally, to effect real labour reform that would benefit all the workers in the country?
You also can't put a red herring under my nose and expect me to chase it. I don't really like the smell of fish.
Lazy is a word we use when someone isn't doing what we want them to do.
- Dr. Joy Brown
I have spent many hours trying to counter union activity. Is your shop open or closed? I find that people will generally opt out if they can.
"Tis better to rule in Hell than to serve in Heaven." -Lucifer
It's a requirement for employment.
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