SCC grants Mounties bargaining rights, but permits wage-restraint laws

The Supreme Court of Canada today issued a pair of RCMP-related rulings that, on the one hand, open the door to meaningful collective bargaining rights for officers, while simultaneously affirming the right of government to restrict officers’ wages unilaterally.

In the first case, Mounted Police Association of Ontario v. Canada, a 6-1 majority struck down provisions that excluded RCMP officers from the Public Service Labour Relations Act, which in effect imposed a management-controlled labour-relations regime on RCMP officers.

Laura Young, who represented the MPAO, says that the management-controlled Staff Relations Representative Program was never intended to create a legitimate means for bargaining, but rather to thwart bargaining by instituting a false substitute.

“It was created to forestall association. It was to block association really,” she says. “And that historical evolution is recognized in the decision, so it’s nice to see that openly acknowledged and to have a full and fair history of what we’ve been dealing with here.”

Indeed, today’s decision, written by Chief Justice Beverley McLachlin and Justice Louis LeBel on behalf of the majority, says the SRRP was never “an association in any meaningful sense, nor a form of exercise of the right to freedom of association.

“It is simply an internal human relations scheme imposed on RCMP members by management. The element of employee choice is almost entirely missing and the structure has no independence from management.”

The ruling prohibits government from enacting laws or imposing a labour-relations process “that substantially interferes with the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals.”

In evaluating the sufficiency of the SRRP, the court invoked two core principles — choice and independence —both of which were lacking in the RCMP’s labour-relations program.

While the program did allow RCMP officers to elect representatives on various boards, Young says that’s a far cry from the right to true association.

“You have to distinguish a program of representation from an association,” she says. “It’s not sufficient to simply populate a structure chosen by management as if that constitutes choice.”

“What we have in the staff relations program is an internal program. It’s part of the RCMP, it’s not external. It doesn’t actually constitute an organization or an association. It’s simply a model or a mode within the organization — a department really.”

While a dissent by Justice Marshall Rothstein raises the spectre of an adversarial model where police services can be withheld from the public, Young points to the determination of the majority that states there’s nothing inherently adversarial about an independent collective bargaining model.

“When you have the need to take a stand on an issue, you can be adversarial. You can say that these are important rights. So it’s not that it’s necessarily adversarial, but it gives you the opportunity to choose where and how you take a stand on issues.”

The court has suspended its ruling for 12 months, giving parliamentarians time to bring the applicable provisions in line with the Charter.

In June 2010, the federal government introduced draft legislation in response to the original ruling at the superior court level, which sided with RCMP members. That legislation was taken off the table after a win at the Ontario Court of Appeal.

Now, with a final decision in hand, it remains to be seen whether Ottawa will retable its draft legislation, impose a new system that offers RCMP members greater choice and independence in their bargaining, or simply apply a collective-bargaining framework already in place at the provincial police level.

In the second of today’s companion cases, Meredith v. Canada, the SCC has issued a starkly contrasting judgment, ruling against RCMP officers who challenged the constitutionality of the 2009 Expenditure Restraint Act, which had unilaterally rolled back wage hikes from 2008 to 2010 for officers, instead imposing a cap of 1.5 per cent annually.

The 6-1 ruling sides with the government this time, determining that the legislation did not single out RCMP officers or restrict their freedom of association. Regardless of the constitutional insufficiency of the bargaining process, the decision states that, “in this case, the ERA did not substantially interfere with the process so as to infringe RCMP members’ freedom of association.

“The limits imposed by the ERA were shared by all public servants, were consistent with the going rate reached in agreements concluded elsewhere in the core public administration and did not preclude consultation on other compensation related issues, either in the past or the future.”

Christopher Rootham, a partner at Nelligan O’Brien Payne LLP in Ottawa, who represented the RCMP officers in Meredith, says the ruling is significant in that it creates a perception that wage-restraint legislation is constitutionally permissible in certain circumstances.

“It doesn’t go so far as to create a licence for wage-restraint legislation — it just doesn’t; this is a unique circumstance — but I think governments are at least going to have some comfort that certain forms of wage-restraint legislation is not automatically unconstitutional.”

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