January 2015 saw the Supreme Court of Canada (“the SCC”) issue three significant rulings about section 2(d) of the Charter of Rights and Freedoms: decisions in Mounted Police Association of Ontario v. Canada (“MPAO”), Meredith v. Canada (“Meredith”) and Saskatchewan Federation of Labour v Saskatchewan (“SFL”).
Those decisions read together appear to solidify and strengthen the rights of employees and their associations to be heard in meaningful bargaining, and to strike or have alternative leverage, when bargaining.
The Charter is Canada’s statement of individual rights, in respect of government, enshrined within the Constitution. Section 2 of the Charter says this:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Employees and their associations have taken up section 2(d) aggressively, aiming usually at laws which forbid people from unionizing. The SCC ventured into this territory in 2007 in the B.C. Health Services Case, with strong language saying that the freedom of association meant collective bargaining. The Court stepped back slightly from that later in Fraser, saying that the association right did not guarantee a particular process. The Court in Fraser stated the right plainly:
Section 2 (d) of the Charter protects the right to associate to achieve collective goals. This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith. Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2 (d) right of free association, which renders the law or action unconstitutional unless justified under s. 1 of the Charter .
The actions in both MPAO and Meredith were brought by uniformed Members of the RCMP who had been precluded, by terms of the RCMP Act, from forming a union. Instead, they were limited to membership in an internal staff association run by RCMP management. In MPAO, employees claimed this restricted the exercise of their association rights under Section 2(d). In Meredith, they claimed that wage roll backs during the financial crisis were also a violation of the right.
The MPAO case was significant not only because of the issues, but also because it called on the SCC to essentially reverse its own 1999 decision in Deslisle, where the exclusion from collective bargaining had been upheld. The Court effectively did that in MPAO (declaring the ban on a union unconstitutional) but ruled that Parliament’s decisions to roll back promised wage increases in 2009 did not violate the right.
MPAO and Meredith were issued on January 16th. Examining them together, we see this:
- Workers form associations to “meet on more equal terms” employers which have more power;
- To do that, they must have “a meaningful process of collective bargaining” to be heard and have leverage;
- An outright legal prohibition on such action violates the freedom of association;
- It is not justified by any reasonable limit under s.1 of the Charter;
- However, the form of collective bargaining available is not guaranteed to a group;
- Nor are particular desired outcomes sought by employees.
In Meredith the Court quotes itself when drawing a line between the promise of participation and a particular result:
As the majority says in MPAO, the fact that some goals are not ultimately achieved by the association does not mean that the interests served by collective bargaining have been frustrated: s. 2 (d) “guarantees a process rather than an outcome” (para. 67). The restriction on wage increases imposed by the ERA was undoubtedly not the result that RCMP members and their representatives hoped for. But so long as good faith consultation took place, their dissatisfaction with the result has no bearing on the constitutional analysis.
Two weeks later on Jan. 30, 2015, the SCC released the anxiously-awaited decision in SFL. In that case, the Saskatchewan Legislature had passed a law eliminating public servants’ right to strike where those employees’ positions were deemed “essential.” The union, the Saskatchewan Federation of Labour, argued that obliterating the right to strike made the right of association relatively meaningless. A majority of the Court, in reasons delivered forcefully by Justice Abella, found this:
The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is constitutionally protected by s. 2 (d).
The Court stopped short of saying a right to strike was guaranteed, but found that where that right had to be restricted, the employees affected had to be provided some real alternative where they had bargaining power (such as mandatory arbitration).
Read in light of the MPAO and Meredith rulings, SFL appears to say that not only does the freedom of association guarantee some form of “meaningful” collective bargaining, but such bargaining depends upon employees having economic power – either in withdrawing their labour, or in front of a neutral third party.
These are major conclusions from Canada’s highest court and will likely resonate for years, in many different types of association rights cases:
- For employees who today are legally barred from forming unions or bargaining collectively, MPAO tears down that wall and says they are entitled to associate and collectively bargain.
- SFL says that to meaningfully bargain those employees must have a right to strike, except in narrow instances in which case they’re entitled to an alternative form of leverage.
- But Meredith makes it clear, having a right to associate and bargain – even to strike - does not guarantee employees will get whatever they demand. They are, however, entitled to a seat at the table.