February 23, 2015
In the span of two weeks at the beginning of 2015, the Supreme Court of Canada (SCC) has issued two decisions that will undoubtedly change the legal landscape for organized labour across the country.
The first case involved a dispute between the Mounted Police Association and the Attorney General of Canada. At stake was the legality of legislation which limited the Mounties’ right to choose to be represented in their employment by a bargaining agent of their own choosing. More specifically, the SCC was asked whether the exclusion of the Mounties from the right to be represented by an exclusive bargaining agent that was arms’ length from management and their exclusion from the right to bargain collectively (which all other federal employees are entitled to under the Public Service Labour Relations Act) constituted a violation of the Mounties’ freedom of association as guaranteed in section 2(d) of the Canadian Charter of Rights and Freedoms (Charter).
The SCC determined that the Mounties’ freedom of association had, in fact, been violated. Although the facts of the case did reveal that the Mounties did have access to an internal grievance procedure “scheme” to address workplace disputes, it was a scheme found to represent the interests of the employer rather than the employees. The scheme did not provide the Mounties with the ability to engage in collective bargaining and be represented by a bargaining agent of their own choosing that had a sufficient degree of independence from the employer. In coming to its conclusions, the SCC stated:
The s. 2(d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests.
The second decision pitted the Saskatchewan Federation of Labour (Federation of Labour) against the Saskatchewan Provincial Government. At stake was the Federation of Labour’s challenge to the Province’s enactment of two statutes back in 2008 – the first, the Public Service Essential Services Act (PSESA) which took away the right to strike for essential service workers in the Province and the second, the Trade Union Amendment Act (TUAA) which did away with card-based certification and also introduced further legislative changes which made workplace certifications more difficult to achieve while at the same time making the ability to terminate a union’s bargaining rights much easier.
The SCC’s decision in the Federation of Labour case can, in some ways, be viewed as a split decision. The SCC upheld the Province’s amendments set out in TUAA despite clear empirical evidence that the types of legislative changes the Province had enacted significantly reduced the likelihood of workplace organization. Although this aspect of the decision is disappointing for organized labour, it is somewhat overshadowed by the positive aspect – that being the SCC’s decision to strike down the PSESA. In doing so, the SCC made it clear that section 2(d) of the Charter not only provides the right to engage in meaningful collective bargaining with constitutional protection, but that constitutional protection extends to protect a union’s right to strike when an impasse is reached in the collective bargaining process. The SCC stated:
The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.
Over the past few years, decisions of the SCC have favoured federal and provincial legislation intended to limit the ability of employees to organize or exercise rights once organized. However, these decisions are a significant departure from earlier decisions of the same court.
The SCC’s recognition that the Charter’s guarantee of freedom of association extends to include the right to engage in meaningful collective bargaining is significant. It provides the legal basis upon which organized labour can and likely will challenge existing and future legislation which seeks to limit this right. Further, the SCC’s recognition that the right to strike forms such a fundamental part of the collective bargaining process that it too is worthy of constitutional protection and has the ability to put an end to any government’s ability to lawfully enact back to work legislation that artificially ends otherwise lawful strikes.
These two decisions are, without question, victories for the Mounties and the Saskatchewan Federation of Labour and, in many ways, victories for organized labour as a whole. However, these decisions may also signal a shift in the current court’s perspective and result in a more liberal and employee friendly court in both the unionized and individual employment context.
Mounted Police Association v. Canada (Attorney General) 2015 1 SCC (CanLII)
Saskatchewan Federation of Labour v. Saskatchewan 2015 4 (CanLII)