The SCC will issue its decision in the appeal from this Ontario Court of Appeal on Friday January 16, 2015. I will summarize the decision after I have time to read it. I’ve long since given up on trying to predict how the SCC will interpret Section 2(d) of the Charter [freedom of association].
This post from June 2102 described my thoughts on the Court of Appeal decision. It was cited in at least two of the factums filed in the SCC case. Wonder if a blog has ever been cited in a Supreme Court decision? Ha! I’m not holding my breath on that one.
I’m back from my conference in Hawaii, where I heard a lot about Chinese labour law. In China, the state creates the only union allowed, and that union occasionally advocates for workers, but that is not its central role. Its main role is to promote the employer’s efficiency interests and the political interests of the state. In recent times, workers have taken enormous risks to engage in independent industrial action to fight for improved working conditions, against the wishes of the union, the employer, and the state.
I was reminded of the Chinese situation as I read a decision of the Ontario Court of Appeal released while I was away. The decision is called Mounted Police Association of Ontario v. Canada. The OCA overturned a lower court decision that found that the legislative scheme applicable to RCMP officers violated Section 2(d) of the Charter [freedom of association], and was not saved by Section 1. I described the lower court decision a few years ago.
The RCMP are excluded from the Public Sector Staff Relations Act, which established the collective bargaining mechanisms for most other federal employees. Instead, the RCMP are governed by a regulatory model that creates an employee association called the Staff Relations Representative Program (“SRRP”). The SSRP includes elected Staff Relations Represenatives (SRRs) who are RCMP officers. The SRRs meet with the employer and discuss employee issues. Some of the RCMP formed their own independent association (MPAO) and attempted to negotiate with the employer, but the employer refused to engage that association. There is no legal obligation on the employer to recognize or dialogue with any employee organization other than the one created by the state, the SRRP.
The MPAO argued that the legal framework violates the freedom of association of its members, since the legislation effectively precludes the workers from engaging in collective bargaining through their chosen independent representative. The legislation requires the employer only to recognize a non-independent, state-created association, and even then does not require it to actually bargain with that entity. Does this model ‘substantially interfere’ with the right of RCMP workers to exercise their constitutional right to collective bargaining, as defined in B.C. Health Services and Fraser?
Decision of OCA
No violation of Section 2(d), lower court decision is quashed.
In Fraser, the Supreme Court ruled that Section 2(d) protects a freedom of employees to associate to achieve collective goals. Substantively, that means at least that employees must be able to make collective representations to their employer, which must be “considered in good faith” by the employer, meaning that the employer must not be able to simply dismiss the representations out of hand.
The OCA finds that the constitutional right to collective bargaining is a ‘derivative right’ of freedom of association. This means that, “a positive obligation to engage in good faith collective bargaining will only be imposed on an employer when it is effectively impossible for the workers to act collectively to achieve workplace goals” (para. 111). The OCA concludes that the legal framework does not violate Section 2(d), because: (1) the police have been able to form an independent association; (2) the SRRP, though not independent of the employer, includes elected employees, and the employer meets and listens to those employees on employment-related matters; and (3) there is a Legal Fund that police pay for and that advocates for them with the employer. When combined, these three factors demonstrated to the OCA that it is not ‘impossible’ for the police to associate and make collective represenations to the employer, and have those representations considered in good faith. Therefore, applying the ‘derivative’ right analysis, there is no positive obligation on the state to do anything more under Section 2(d).
If applied narrowly, this case should not have much impact beyond the police. The OCA emphasizes that the police are very different from other types of employees insofar as they have been able to associate and effectively advocate for members even outside of any formal protective labour law regime (see discussion by the SCC in Delisle). In the OCA’s view, the SRRP does make collective representations on behalf of workers, and the employer listens to them, so that it doesn’t matter that it is not an organization selected by the employees. The facts can be distinguished from almost every other type of worker.
Nevertheless, the labour movement is likely to be very concerned about some aspects of this decision. For one thing, the OCA finds that a government is free to impose a non-independent association on workers and to decree that the employer only needs to acknowledge that association. As long as the employer goes through the motion of meeting with the state-created, non-independent association, nodding along to the suggestions it makes, there will be no violation of Section 2(d).
Can you see why our model of freedom of association is beginning to look like the Chinese model? The main difference between the Chinese model of forced state unionization and the RCMP model is that the police can still form and join their own independent association. But that independent, employee-selected association has no legal rights at all, so it is largely meaningless. The employer can simply ignore it, with the explicit approval of the Canadian state. Only the government created, non-independent union has any legal status.
The OCA effectively breaks the freedom to associate up into its component parts and then treats them all as distinct pieces rather than as a coherent whole. It confirms that Section 2(d) includes a right of workers to form an independent employee association, and to make collective representations to the employer and to have those representations considered in good faith (as per Fraser). But the new twist introduced by the OCA is that it need not be the chosen independent association that makes the representations on behalf of the employees. Rather, the state can create a non-independent organization to do the representation part of freedom of association, while the employee-selected, independent union sits by and twiddles its thumbs. I didn’t see that one coming, I confess. I actually thought that the SCC meant that the employees had a right to make collective representation through their chosen collective organization.
The OCA also concludes that, if workers had a right to make collective representations through their own chosen independent representative, then the main Wagner style legislation, which gives additional rights (duty to bargain in good faith, right to strike) to majority unions only, would be unconstitutional. The theory there is that employees could join non-majority unions and insist on bargaining with the employer, but only majority unions would have such a right under the main labour relations legislation, thereby rendering that legislation underinclusive. The OCA says that such a model that required employers to ‘bargain’ with minority unions would be ‘unweildy’.
Note though that in Fraser, the SCC approved of the Agricultural Employees Protection Act, which grants rights to any group of employees who form or join an association, majority or otherwise, to make collective representations to the employer free from threat of reprisal, and requires the employer to consider all such representations ‘in good faith’. In other words, the SCC approved in Fraser the precise model the OCA rejects as ‘unweildy’ in the RCMP case. The OCA rejects the argument that the Charter protects a right to majority collective bargaining, but then also rejects the argument that workers should be entitled to make representations through independently chosen minority unions because it would be too unweildy.
So where does that leave us?
I have argued before that Fraser and B.C. Health define the minimum entitlements provided by Section 2(d), or the ‘thin’ model of freedom of association. The SCC has told us that Section 2(d) protects a right to form and join an independent employee association, to make collective representations to the employer through that chosen association, and to have those representations considered ‘in good faith’ by the employer [whatever that turns out to mean]. For government employees, these rights are directly enforceable. The fact that some employees have potential access to a thicker model of freedom of association (including a statutory duty to bargain and a right to strike, for example) does not detract from the right of all employees to be able to exercise at least the thinner set of rights. The Charter doesn’t guarantee any particular model of labour relations, but it does guarantee employees at least the minimal bundle of rights recognized in B.C. Health and Fraser.
I think the OCA got this wrong. By mandating a non-independent association as the only entity that the employer must acknowledge, the statutory model signals to workers and the employer that they have no legal right to make collective representations through their chosen association. The fact that they can still ‘join’ an independent union that can then be completely ignored by the employer doesn’t provide them with even the thin version of freedom of assocation that agricultural workers can access under the AEPA. As a result, the RCMP officers are unable to exercise the very rights that the SCC said in Fraser and B.C. Health are protected under Section 2(d).
This is a complicated case though. What do you think about the OCA’s approach? Do you think the SCC would overturn this if it is appealed?