While most of us have been busy studying for exams, it’s been a pretty eventful week in labour law.

On April 2nd, the Supreme Court granted leave to appeal from the Ontario Court of Appeal’s decision in Ontario (Attorney General) v. Fraser.

Fraser dealt with the constitutionality of the Agricultural Employees Protection Act. The Act was originally designed to comply with Dunmore , and was upheld by the Superior Court on that basis. But in 2007 the Supreme Court in BC Health Services declared that s.2(d) of the Charter included the right to collective bargaining. As Andrew reported late last year, the Ontario Court of Appeal found that the AEPA violated the workers’ Charter right to collective bargaining and declared it invalid.

In BC Health Services, the Supreme Court said that s. 2(d) protected against “substantial interference” with “the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith” (para. 90). This was a right to a process, not an outcome, but the court did not specifically define what that guaranteed process consisted of. It was clear that the right did not cover the full scheme of rights provided by the OLRA or any other particular labour relations regime or bargaining method (para. 91).

The AEPA grants employees’ associations the right to make representations (see s. 1(2) & s. 5(1)), and requires employers to listen to them (see s. 5(6)&(7)). Does this “preserve a process of consultation and good faith negotiation” (para. 94) that would satisfy the Charter?

The Court of Appeal was of the opinion that the right to collective bargaining had to include 3 elements:

1. a statutory duty to bargain in good faith;
2. statutory recognition of the principles of exclusivity and majoritarianism; and
3. a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. (para. 80)

However, this sounds like the adoption of the particular labour relations regime found commonly in Canadian workplaces, which seems to conflict with BC Health Services.

On April 6th, the Ontario Superior Court of Justice struck down s. 96 of the Royal Canadian Mounted Police Regulations as a violation of the same Charter right to collective bargaining, in Mounted Police Assn. of Ontario v. Canada (Attorney General).

Mounties are excluded from the PSLRA (see s. 2(1) definition of “employee” and the exclusion under paragraph (d)), and have a separate labour relations regime. The purpose of s. 96 of the RCMPR is to designate a particular association (the Staff Relations Representative Program) as the only one which can represent employee interests.

Members of the SRRP are selected by employee vote (s. 96(2)). Consultation with RCMP members is required by private agreement between the SRRP and management, but final decisions on human resources matters ultimately rest with management (para. 16). Does this “preserve a process of consultation and good faith negotiation” that would satisfy s. 2(d) of the Charter?

Answering in the negative, MacDonnell J. stated that BC Health Services required a process that was more than just consultation (para. 47) and that equality of bargaining power was required (para. 49). He commented: “It is difficult to conceive of as a negotiation, let alone as bargaining, a process in which employees can make no offer to management of a quid pro quo because management can have the quid regardless of whether it surrenders the quo” (para. 47).

What is the role of s. 1 in both of these cases? In industries such as agriculture and law enforcement, to what extent should courts defer to legislative decision making? Both cases have different but compelling arguments against workplace disruptions, but the extent of any disruption would depend on what the procedural requirements of collective bargaining entail.

This week was a busy week in the newspapers for labour relations. Many newspapers ran articles on how unions and employees who are now in the process of bargaining renewal agreements are reacting in light of the oncoming (or some might say present) economic situation. Here’s a few of the exciting - and thought provoking - articles written this past week:

• A tale of two contracts: public service and Canada Post, The Ottawa Citizen. Speaks about the recent settlement between Treasury Board and Public Service Alliance of Canada (PSAC) as well as the current strike of PSAC workers at Canada Post
• Strike ban proposal ‘atrocious,’ unions say, The Ottawa Citizen. Discusses the proposal by the government to introduce a strike ban, roll back wages, and cap future wage increases
• Pay cuts won’t fix sick auto industry, CAW say, The Globe and Mail. Discusses the need of unions and auto manufacturers to work together to help turnaround the auto industry at the Big 3 manufacturers
• Farm workers’ inability to bargain violates Charter: OCA, The Lawyer’ Weekly. Discusses the Ontario Court of Appeal’s recent finding that Farm Workers in Ontario are being denied their right to collective bargaining under s.2(d) of the Canadian Charter of Rights and Freedoms.

These articles raise important questions about the role of unions in difficult economic times, the balancing of management interests, union interests, and the public interest, and of course the rights of unions under the newly expanded s.2(d) freedom of association rights of the Canadian Charter of Rights and Freedoms. It will be interesting to see in the next few weeks how all these issues play out, and where labour relations will go in the new year.