Is collective bargaining a constitutional right? If employers and labour lawyers were looking for a clear universal answer from the Supreme Court of Canada on the matter, they will have to wait some more. A recent case dealing with the matter still leaves the debate open, lawyers and legal scholars said at a Kingston, Ont., event last week.
The Supreme Court recently upheld an Ontario law that does not grant farm workers many of the collective bargaining rights associated with unions. Those opposing the law had argued it violated the right to freedom of association under the Canadian Charter of Rights and Freedoms.
In Ontario (Attorney General) v. Fraser, the SCC ruled Ontario’s Agricultural Employees Protection Act did not violate charter rights because it mandated employers to negotiate “in good faith” with their employees, despite the fact that the law does not protect the right of agricultural workers to strike or bargain collectively.
The court was divided, with Justice Rosalie Abella disagreeing with the majority. “The AEPA violates s. 2(d) of the charter because it does not protect, and was never intended to protect, collective bargaining rights,” Abella wrote in the dissenting option.
Steven Barrett, a labour and constitutional lawyer and managing partner at Sack Goldblatt Mitchell LLP, says there will likely be other cases on this topic in the future, with five related court challenges currently in process across Canada.
However, he adds, whatever model is decided on for employee representation “at the end of the day, without the right to strike they are meaningless . . . It’s not just my view, it seems to be a common view.”
Barrett sees the SCC as being wary of granting constitutional protection to collective rights at this time.
“The court was very nervous about intervening in labour relations again,” he says, adding the “court has a very ambivalent view” on deciding “labour rights are human rights.”
If the case indicates anything for the future, it is that there was a perceived need to put a break on pushing protections for collective bargaining rights. “But it is a temporary break,” Barrett says.
Roy Adams, a professor emeritus of industrial relations at McMaster University in Hamilton, Ont., says internationally the freedom of association is tied to collective bargaining, and Canada should follow that example.
“Under international law, the government has the obligation to promote collective bargaining,” says Adams. “Not that accepts it, not that tolerates it, but promotes it.”
Adams sees the collective bargain rights as human rights, and adds Canada is treaty-bound to see these rights the same way, because it is a member of the International Labour Organization.
Sara Slinn, a professor at the Osgoode Hall Law School at York University in Toronto, says alternative schemes that serve those who are excluded from collective bargaining could still offer some protection for workers.
But she is wary about the future effects of Fraser particularly on vulnerable employees, when it comes to bargaining power, calling the “good faith” standard set by the court “a minimalist option.”
“These employers will not have a hard time to say ‘no’ in good faith, and engage in extremely tough bargaining,” says Slinn.
The scholars made their comments at a workshop organized by the Centre for Law in the Contemporary Workplace at Queen’s University. The event was simulcast to audiences in Calgary, Montreal, Vancouver, and Toronto.