Supreme Court enshines collective bargaining as constitutional right

Because it looks like a simple rebuke of the zealous anti-union tactics of BC’s Campbell administration, observers Back East may have missed this significant ruling by the Supreme Court on Friday. Below is the story from Saturday’s Vancouver Sun, and a commentary from a columnist in today’s Sun. Interestingly, the term “judicial activism” crops up fairly early in the story, despite its complete absence from coverage from the Supreme Court decision of two years ago that opened up Quebec to private health insurance and care.

Top Court condemns ripping up contracts

Judges make history by declaring B.C.’s treatment of health workers unconstitutional

VICTORIA — When it swept into power six years ago, all but obliterating the New Democratic Party, the B.C. Liberal government felt it had been given a historic mandate, one Premier Gordon Campbell would use to implement a far-reaching privatization and cost-cutting agenda to kick-start a flat-lined economy.

Within six months, Campbell made one of his first bold moves: He used his 77-2 majority in the legislature to tear up a collective agreement with the Hospital Employees’ Union, essentially privatizing more than 8,000 hospital jobs, most of them held by women.

… But in the Supreme Court of Canada’s landmark ruling Friday Canada’s top judges essentially agreed with what the New Democratic Party has claimed for five years: The Liberal government went too far in its agenda, trampling the rights of unionized workers to negotiate a contract.And in what is another sweet, political irony for the NDP — and the labour movement, which fought Bill 29 in the courts for the last five years — Campbell can now be credited as the catalyst for a court ruling that is one of the biggest judicial victories in Canadian history: By ruling parts of Bill 29 unconstitutional, Canada’s highest court has in effect enshrined collective bargaining as a constitutional right protected under the Charter of Rights and Freedoms.

“The Supreme Court of Canada basically says the largest mass firing of women in the labour movement was not only immoral, it was illegal,” said Jim Sinclair, president of the B.C. Federation of Labour. “That wasn’t accepted by this government, they thought they had a right to do this.”

While judges don’t like making forays into the political arena, the Supreme Court of Canada’s ruling — which Health Minister George Abbot predicts will start another debate on the propriety of “judicial activism” — also has some profound political repercussions on the B.C. scene.

And Sun columnist Vaughn Palmer weighs in:

Campbell’s chickens come home to roost with top court decision

… The offending measure was denounced as contract-breaking legislation because it stripped away job security provisions in contracts with unionized health care workers. But it was equally notorious as promise-breaking legislation because it marked a complete reversal of Campbell’s promise to respect public sector labour contracts.

… Once installed in office, he would proceed to renege on every aspect of those commitments. Bill 29, introduced in early 2002, targeted the HEU directly, busting open its contract and stripping away protections against privatization.

Far from having nothing to fear, thousands of HEU members would see their jobs shifted to private companies that offered much less in the way of pay, benefits and job security. Plus, the Liberals did all this in the most heavy-handed fashion, a point underscored by the Supreme Court in tossing the bill’s most offending provisions.

… The cabinet considered other options, from asking the union to renegotiate the more contentious restrictions on contracting-out to seeking third-party help to resolve the impasse.Those options were not given much chance of success. But they were worth trying, not least because they would have strengthened the government’s case when the law was challenged in court. The Supreme Court particularly lamented the Liberal failure to give due process a chance.

… The court did indeed articulate a new right to collective bargaining. But it also rejected the government’s ruthless handling of health care workers, establishing an entitlement to due process that will affect the government’s relations with all public sector unions.

Campbell himself bears a lot of the responsibility for that defeat, as he does for the HEU decision to go to court and challenge the law in the first place.

The court gave the province 12 months to fix the problem, without saying how. Legal advisers and public servants are studying the decision, trying to decide where to begin.

One comment

  • The reveral of the Supreme Court on this issue (coverage of union rights by the Charter) is hugely significant, and not just in terms of limiting the power of governments to overturn collective agreements. Building on the recetn Dunmore decision, it would seem to open up a duty on the part of employers to bargain in good faith with a collective agent of workers (purusuant to freedom of association) which may yet be used to promote different (non majority) forms of union representation and bargaining. Roy Adams has been arguing for a long time that workers have a human right to collective representation independentof the specific form of labour law – and the Court now seems in general agreement. (Adams recently published a book on this with the CCPA.) Also note that there will be a conference on labour rights as human rights at York this Fall, organized by the Centre for Research pn Work and Society.

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