Supreme Court ruling on collective bargaining

A dispatch by email from McMaster’s (and PEF member) Roy Adams on last month’s ruling:

In a dramatic and entirely unexpected decision, the Supreme Court of
Canada on June 8th “constitutionalized” collective bargaining in Canada.
From its inception, the Charter of Rights and Freedoms has had a freedom
of association clause but in a series of decisions in the 1980s the Court
said that freedom of association in Canada does not imply constitutional
rights to bargain collectively or to strike. In the June 8th BC Health
Services case the Court reversed itself. Now, all Canadian workers have a
constitutional right to bargain collectively their terms and conditions of
work. The Charter applies directly to governments both as lawmakers and
employers but only indirectly to private sector employers. If private
sector workers are found to be unable to effectively exert their rights
because of the existence of obstructive legislation or the absence of
facilitating legislation the Court may compel governments to legislate.

The potential economic impact of this decision is huge. In several
European countries collective bargaining coverage is nearly universal and
in those countries, the social wage is higher, income disparities much
less and labour plays a key role in effectively negotiating economic
policy. Could it happen here? If worker rights were protected and promoted
as they are supposed to be according to the international norms the Court
has said is a persuasive source for interpreting the Charter the
probability of that happening is many magnitudes higher than it was a
month ago. Plenty of work for economists here. Modelling the outcomes of a
50%, 60% or 70% organized workforce would be a good start.

Here are several quotes from the decision:

“The right to collective bargaining is a fundamental right endorsed by the
members of the ILO in joining the Organization, which they have an
obligation to respect, to promote and to realize in good faith.”

“The right to bargain collectively with an employer enhances the human
dignity, liberty and autonomy of workers by giving them the opportunity to
influence the establishment of workplace rules and thereby gain some
control over a major aspect of their lives, namely their work.”

“Collective bargaining is not simply an instrument for pursuing external
ends…rather [it] is intrinsically valuable as an experience in
self-government.”

“One of the fundamental achievements of collective bargaining is to
palliate the historical inequality between employers and employees…”

“Collective bargaining permits workers to achieve a form of workplace
democracy and to ensure the rule of law in the workplace. Workers gain a
voice to influence the establishment of rules that control a major aspect
of their lives.”

“Canada’s current international law commitments and the current state of
international thought on human rights provide a persuasive source for
interpreting the scope of the Charter.”

“Canada should be presumed to provide at least as great a level of
protection as is found in the international human rights documents that
Canada has ratified.”

(Health Services and Support – Facilities Subsector Bargaining Assn. v.
British Columbia, [2007] SCC 27)

Roy J. Adams
McMaster

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