Ratified treaties;¹ Work of international supervisory bodies²

Canadian Charter on Rights and Freedoms/ Freedom of association/ Right to collective bargaining/ Whether the constitutional guarantee of the right to association includes the right to collective bargaining/ Use of international law as a guide for interpreting domestic law

An appeal was brought before the Supreme Court of Canada in which the appellants challenged the constitutionality of Part 2 of the Health and Social Services Delivery Improvement Act SBC 2002 because they considered that it violated the Canadian Charter on Rights and Freedoms.

Part 2 of the act gave employers greater flexibility in organizing relations with employees and in some cases even allowed them to do so in ways that would not have been possible under the conditions established in previous and current collective agreements. It introduced changes in transfers and multi-worksite assignment rights (sections 4 and 5), subcontracting (section 6), the status of employees under subcontracting agreements (section 6), employment security programmes (sections 7 and 8), and lay-offs and bumping rights (section 9). Section 10 also invalidated any part of a current or future collective agreement that was not in conformity with the new act, and also any collective agreement aiming to amend these restrictions.

The legal issue faced by the Court was to determine whether the guarantee of freedom of association laid down in section 2(d) of the Charter protected collective bargaining rights and, if so, to determine whether these rights had been violated by the approved law. In ruling on the first point, the court made a significant change in its case law because it recognized that the grounds called on in the past to exclude the right to collective bargaining from the guarantee to freedom of association could no longer be supported because it would not be consistent with Canada’s historical recognition of the importance of collective bargaining. Moreover, the Court stated that collective bargaining is an integral part of freedom of association in international law, which can be used in the interpretation of guarantees in the Charter:

“Under Canada’s federal system of government, the incorporation of international agreements into domestic law is properly the role of the federal Parliament or the provincial legislatures. However, Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees (see Suresh v. Canada (Minister of Citizenship and Immigration) […]). Applying this interpretive tool here supports recognizing a process of collective bargaining as part of the Charter’s guarantee of freedom of association.

Canada’s adherence to international documents recognizing a right to collective bargaining supports recognition of the right in s. 2(d) of the Charter. […]”³

The Court stated that the sources most important to the understanding of section 2(d) of the Charter are the International Covenant on Economic, Social and Cultural Rights (ICESCR) the International Covenant on Civil and Political Rights (ICCPR) and ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise. Because Canada had ratified all three, the Court recognized that these documents reflected not only international consensus, but also principles that Canada had committed itself to uphold:

“The ICESCR, the ICCPR and Convention No. 87 extend protection to the functioning of trade unions in a manner suggesting that a right to collective bargaining is part of freedom of association. The interpretation of these conventions, in Canada and internationally, not only supports the proposition that there is a right to collective bargaining in international law, but also suggests that such a right should be recognized in the Canadian context under s. 2(d).”⁴

The Court analysed the content of Convention No. 87 with reference to its interpretation by the ILO supervisory bodies:

“Convention No. 87 has also been understood to protect collective bargaining as part of freedom of association. Part I of the Convention, entitled “Freedom of Association”, sets out the rights of workers to freely form organizations which operate under constitutions and rules set by the workers and which have the ability to affiliate internationally. Dickson C.J., dissenting in the Alberta Reference, at p. 355, relied on Convention No. 87 for the principle that the ability “to form and organize unions, even in the public sector, must include freedom to pursue the essential activities of unions, such as collective bargaining and strikes, subject to reasonable limits”.

Convention No. 87 has been the subject of numerous interpretations by the ILO’s Committee on Freedom of Association, Committee of Experts and Commissions of Inquiry. These interpretations have been described as the “cornerstone of the international law on trade union freedom and collective bargaining”. […] While not binding, they shed light on the scope of s. 2(d) of the Charter as they were intended to apply to collective bargaining […]”⁵

The Court therefore concluded that section 2(d) must be understood to include protection of the rights of workers to associate with the aim of advancing work-related objectives through a process of collective bargaining, and noted the duty of negotiating in good faith. It added that this protection covers against substantial interference by the State and again noted the duty of negotiating in good faith. It also noted that the substantial interference must be determined having regard to the importance of the matter affected by the process of collective bargaining and to the capacity of the union members to pursue goals in concert, and to the manner in which the measure impacts on the collective right to negotiation and consultation in good faith. The court concluded that:

“[S]s. 4, 5, 6(2), 6(4) and 9, in conjunction with s. 10, interfere with the process of collective bargaining, either by disregarding past processes of collective bargaining, by pre-emptively undermining future processes of collective bargaining, or both. This requires us to determine whether these changes substantially interfere with the associational right of the employees to engage in collective bargaining on workplace matters and terms of employment.[…]

The provisions dealing with contracting out (ss. 6(2) and 6(4)), layoffs (ss.  9(a), 9(b) and 9(c)) and bumping (s. 9(d)) deal with matters central to the freedom of association. Restrictions in collective agreements limiting the employer’s discretion to lay off employees affect the employees’ capacity to retain secure employment, one of the most essential protections provided to workers by their union. Similarly, limits in collective agreements on the management rights of employers to contract out allow workers to gain employment security. Finally, bumping rights are an integral part of the seniority system usually established under collective agreements, which is a protection of significant importance to the union. […]

The same cannot be said of the transfers and reassignments covered under ss. 4 and 5 of the Act. These provisions (…) are concerned with relatively minor modifications to in-place schemes for transferring and reassigning employees. Significant protections remained in place. It is true that the Act took these issues off the collective bargaining table for the future. However, on balance ss. 4 and 5 cannot be said to amount to a substantial interference with the union’s ability to engage in collective bargaining so as to attract the protection under s. 2(d) of the Charter.”⁶

The Court concluded by declaring sections 6(2), 6(4) and 9 of Part 2 (read in conjunction with section 10) of the act to be unconstitutional because they substantially and unjustifiably violated the right to collective bargaining protected by section 2(d) of the Charter, and declared the other provisions impugned to be constitutional because the violation was not substantial.