The Mixer, November, 2007 by Elaine Bernard
Our Times/CALM It’s not often that labour celebrates a decision by the courts, but a June ruling by the Supreme Court of Canada, in a case involving health care unions and the British Columbia government, is a notable exception. Proclaiming collective bargaining as a “constitutional right” supported by the Charter of Rights and Freedoms, the Supreme Court has rendered a landmark decision. The decision is 135 pages, but is well worth the read for its analysis and review of the history of the Court’s thinking on freedom of association and collective bargaining. In an important reversal, the Justices declared that earlier court decisions refusing to recognize freedom of association as including the right to bargain collectively “do not withstand principled scrutiny and should be rejected. This sudden recognition by Canada’s highest court of collective bargaining as a fundamental right may breathe new life into ailing labour rights in Canada. As well, it may put provinces and the federal government, always quick to introduce legislation limiting and undermining collective bargaining rights of workers, on notice that the Court has a new-found appreciation of the role of collective bargaining in promoting the core values of “human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy.” This case arose out of a January 2002 attack by BC’s Liberal government on the rights of unionized health care workers. The government gutted health care workers’ collective agreements and placed limits on the unions’ future ability to re-establish rights lost through the unilateral government action. The Court’s decision is a much delayed victory that sends health care workers and their union back to the bargaining table. The Court has suspended of its decision for one year “to allow the government to address the repercussions of this decision,” but it has done nothing to redress the tremendous loss experienced by BC health care workers. With about 8,000 workers having been fired so far, and thousands more having had their wages and benefits slashed bargaining promises to be very contentious. And the Court reminds us that collective bargaining is “a limited right,” a “right to a process” and not a guarantee of “a certain substantive or economic outcome.” In recognizing collective bargaining “as the most significant collective activity through which freedom of association is expressed in the labour context,” the Court reversed 20 years of Supreme Court decisions. The Justices argued that workers coming together to negotiate their terms and conditions of employment has a long history in Canadian labour relations. Quoting numerous labour scholars and historians, the decision reviews the long legal battle to establish labour and bargaining rights for workers in Canada. In a ringing endorsement of bargaining expressed in the language of human rights, they conclude that, “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.” Future decisions on labour relations issues may be possible because of the Court’s explicit and detailed rejection of the argument from earlier Charter labour cases that collective bargaining and the right to strike are “modern rights” created by legislation, and not “fundamental freedoms.” In this BC case, the Court contends that “long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society.” Legislation did not create collective bargaining, but legislation eventually came to protect bargaining because of its “fundamental importance” to society. One might make the same case for the right to strike. Unfortunately, this case did not involve the right to strike and so it remains an open question whether the Supreme Court, in a future case, will recognize “the right to strike” as a constitutional right. Like collective bargaining, the right to strike “is consistent with, and indeed, promotes other Charter rights, freedoms and values” and therefore deserves to be recognized and protected by the Charter. • Elaine Bernard, a Canadian labour educator, directs the Labor and Worklife Program at Harvard Law School. Our Times is an independent, pro-union Canadian magazine dedicated to promoting worker’s rights and social justice. www.ourtimes.ca | 
