February 10, 2015
We heard from Professor Roy Adams in a Guest Blog a couple of weeks ago on the Supreme Court of Canada’s decision in MPAO v. Canada dealign with the scope of freedom of association in Canada’s Charter of Rights and Freedoms. Then came last week’s decision in SFL v. Saskatchewan, which I described in this post. That case recognized a Constitutionally protected right to strike for the first time. Yet many difficult questions remain about what that will mean in practice. SFL v. Saskatchewan raises more questions than it answers, and it will take years to sort it out.
It should surprise no one that Professor Adams has strong views on the SFL decision, and in this follow up Guest Blog, he sets out his first thoughts on the case.
Here is a PDF version.
Will Canada’s new constitutional right to strike change life as we know it?
By Professor Roy Adams
In my recent comment on the Law of Work Blog on the Supreme Court’s MPAO v. Ontario decision, I stated that the SCC would constitutionalize the right to strike unless it caved in to intense pressure by governments, employers, and various conservative voices to give up its recent reliance on international law. The majority did not crumble but instead finished connecting the triangle that embraces the global human rights understanding of what freedom of association at work means: the right to organize, the right to bargain and the right to strike.
In the 1980s when, in the Labour Trilogy, the Supreme Court first considered the issues of
collective bargaining and the right to strike, deference to the legislative branch carried the day. But that day is done. Despite a stout defense put up by Justice Rothstein, supported by Justice Wagner, Abella J, who wrote the majority’s decision, firmly rejected deference as a general principle. She had this to say:
“In the context of constitutional adjudication, deference is a conclusion, not an analysis. It certainly plays a role in s. 1, where, if a law is justified as proportionate, the legislative choice is maintained. But the whole purpose of Charter review is to assess a law for constitutional compliance. If the touchstone of Charter compliance is deference, what is the point of judicial scrutiny? (Para. 76, emphasis added).
Many observers considered the SCC’s Ontario v. Fraser decision (2011) to be a drawing back from the bold step that the court had taken in Health Services in 2007 when it constitutionalized collective bargaining bringing joy to the labour movement. In Fraser, the SCC refused to uphold the constitutionalization of the Wagner-Act Model of labour legislation that union counsel sought and instead permitted to stand Ontario’s Agricultural Employees Protection Act which organized labour and its allies roundly condemned. The simplistic analysis: if a decision does not conform to the wishes of the left, it must favour the right.
But, looking at the decision from an international/historical perspective, I saw in Fraser a decision consistent with international labour/human rights law that generally protects the rights of labour. The Supreme Court seems to have meant that decision to be so interpreted. In SFL, Abella J, refers to Ontario v. Fraser as a decision in which the rights of labour were not reined in but were instead “further enlarged.” (para 1).
Looking back on the evolution of s. 2 (d) jurisprudence one may construct a story that makes perfect sense. The plot goes something like this. In the 1980s when the SCC is pondering the meaning of s. 2(d) in Canada’s new Charter of Rights and Freedoms, the loudest voices from the labour law community urge the Court to allow legislatures to interpret the meaning of freedom of association. Labour relations issues, the Court is told, are complex, require a delicate balancing and need to be addressed by experts.
The Court listened and the majority opted for deferral. Justice Dickson disagreed and, drawing on the international status of freedom of association at work, wrote an elegant dissent but he could not convince his peers. They said in effect: “Deferral must be our first option” (see for example the comments of McIntyre J at para. 182 of the Alberta Reference). Over time, that option proved unwise as governments ever more boldly acted to constrain worker rights in a manner contrary to both historical tradition and Canada’s international human rights commitments (see, for example, Fudge and Brewin, Collective Bargaining in Canada, Human Right or Canadian Illusion? 2005).
In the 1990s, in the context of “globalization” corporations and their governments came under attack for disregarding workers’ rights in search of new opportunities for profit. Civil Society began to fight back. NGO’s, including the Society for the Promotion of Human Rights in Employment which I and some colleagues got off the ground in 1997, began to demand compliance with basic labour rights. In 1998, the International Labour Organization, issued its Declaration of Fundamental Principles and Rights at Work which reaffirmed the commitment of all of its member states to “promote” compliance with core labour rights as human rights including putting in place policies consistent with ILO standards regarding freedom of association (documented in “From Statutory Right to Human Right: The Evolution and Current Status of Collective Bargaining,” Just Labour (Spring 2008)).
The Canadian government was a prime supporter of the Declaration but the federal and several provincial governments proceeded to ignore the renewed commitment that had been made by Canada by blatantly offending international human rights standards (see Labour Left Out, Canada’s Failure to Protect and Promote Collective Bargaining as a Human Right, Ottawa, Canadian Centre for Policy Alternatives, 2006). Decisions handed down by the ILO’s Committee on Freedom of Association advising provincial and federal governments to change course went unheeded. Around the world, the ILO’s response to Canada’s offences against the right to strike in the public sector became known, ignominiously, as “the Canadian jurisprudence.” In that context one can almost tangibly imagine the collective spirit of the Supreme Court’s majority saying to itself “Uh, oh, deferral ain’t working, we gotta do something about that.”
Unionized public sector workers are likely to be the biggest beneficiaries of the latest court decision. Most public sector workers are organized but there are numerous problems with the practice of public sector bargaining including “contract stripping, contract imposition, back-to-work legislation when workers are on legal strike, restriction of bargainable issues and the denial of the right to strike to approximately half of public sector workers” (see “From Statutory Right to Human Right,” p. 58). During the past several decades Canadian governments have gotten comfortable with these practices despite being chided by the ILO for engaging in them. The SCC’s recent Meredith decision in which the court allowed the Federal government unilaterally to impose a wage freeze for a limited time because of unexpected and negative economic developments indicates that governments will still be granted some leeway by the courts but they now will have to be much more cautious in making use of those practices.
The outlook for change in the private sector, where the great majority of workers have no collective representation, is much more murky. Let me outline two possible scenarios: what should be done and what likely will be done.
As the Supreme Court majority sees it freedom of association, as the sum of the rights to organize, bargain and strike, is an undeniable positive contribution to achieving the purposes animating the Charter of Rights and Freedoms. As expressed it in Health Services: collective bargaining enhances the Charter values of “human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” (paras 81-85).
If the Supreme Court got it right, and I believe it did, the existence of unorganized workers labouring under terms unilaterally drawn up and imposed by their self-selected superiors is as much a black mark on our society as is the continuation of sexual, racial and ethnic discrimination. The lawmakers of the land ought to urgently place at the top of their agendas a plan that would result as soon as possible in collective bargaining becoming the predominant method for the establishment of conditions of work. There is nothing pie-in-the-sky about such an ambition. Several European countries have achieved that status so there is lots of experience to draw from and most of it is good. The Scandinavia countries have come close to achieving negotiated conditions for all and the result has proven to be excellent. They have one of the highest standards of prosperity and equality in the world and they have economies that are consistently listed among the world’s most competitive. Collective bargaining works for everyone.
That is what could be done; that is what should be done, but is not likely to be what will be done. Labour policy norms that we have allowed to settle in during the past seven decades stand in the way. In the limited space here let me point to two of the largest roadblocks.
One of the most insidious norms of our current labour relations system is the conviction of governments, documented in my book Labour Left Out, that it is improper for them to encourage workers to organize. Given its positive contribution to Charter values how can the encouragement of collective bargaining be less proper than urging people to recycle refuse, to vote, or to become vaccinated? Governments have a balancing role to play between labour and management but surely only after collective bargaining is firmly established.
In its Dunmore decision, the Supreme Court found that the failure of government to actively protect the right of farmworkers to organize made it all but impossible for them to effectively exercise their Charter right to freedom of association. Under current Canadian norms most employers oppose the establishment of collective bargaining. That opposition when coupled with government neutrality makes it equally impossible for the great majority of private sector workers to exercise their constitutional rights. Less than 20% have collective representation and, despite the constitutional values that collective bargaining enhances, that number is in decline due largely to the lack of effective government support (see the data in Labour Left Out).
Another roadblock in the way of maximizing the potential of freedom of association is the adherence of both management and labour to the contours of the Wagner-Act Model. After the Health Services decision I met with an MP and urged him to promote international labour rights standards in Ottawa. His political response was: How can we package it? What will be its benefit, its practical utility to those in the field, to union organizers? I was stumped and, even after the right to strike has been constitutionalized, I still am.
Under the Wagner-Act Model that is dominant in the private sector, in order to acquire a government protected right to bargain and to strike workers must certify a union as its exclusive bargaining agent. International law says that those who chose not to do that should still enjoy the right to bargain and to strike in alternative formats (see “The Prospects for Labour’s Right to Bargain Collectively After BC Health Services,” UNB Law Journal, vol. LIX, 2009 and “Fear of Minority Unionisn: Real or Imagined?” . But statutory protection for those rights is not likely to come into existence unless a labour organization or a political party capable of attracting popular support champions that policy.
In Canada, however, because of the hegemony of the Wagner-Act Model, both employers and unions generally reject non-statutory unionism (See, for example, James Clancy “In Unity There is Strength” and my response “The Right to Bargain in a Non-Majority Situation” both in International Union Rights, vol. 17, no. 4, 2010). Employers are afraid of having to deal with multiple unions and unions are afraid of competition from illegitimate employer-dominated associations. Effective ways for dealing with these potential problems exist, but fear of the unfamiliar has so far led to them going unexamined. Unless they have a major change of heart, unions and their political allies are not likely to push for expanded rights for workers with no government certified agent.
Even if some enlightened union went to court to secure the bargaining and strike rights of uncertified worker associations, it is up in the air whether or not the SCC would agree. In my expert opinion I argued that Saskatchewan’s Trade Union Act offended international standards because that act, instead of promoting collective bargaining, made its establishment more difficult by raising the certification bar. But the SCC majority was not willing to buy that argument and, with some governments threatening to invoke the notwithstanding clause of the constitution, it might be wary of aggressively demanding legislation creating new rights for non-statutory associations.
The constitutional right to bargain, which has been in place since 2007, has been of little use to most private sector workers. Unless a major movement appears to push for compliance with international standards in both law and spirit, their newly created constitutional right to strike is likely to have the same fate.