Experience Notable Cases Supreme Court of Canada recognizes constitutional right to collective bargaining

Supreme Court of Canada recognizes constitutional right to collective bargaining

June 08, 2007

Court overturns previous jurisprudence in ground-breaking case

In Health Services & Support Facilities Subsector Bargaining Assn. v. British Columbia, the Supreme Court of Canada recognized a constitutional right to collective bargaining under s. 2(d) of the Canadian Charter of Rights and Freedoms. The decision overturns the Court’s previous jurisprudence in which it held that collective bargaining was not protected under the Charter.

Background

The government of British Columbia passed legislation that nullified existing collective agreement provisions in the health care sector. This included provisions that protected employees against contracting out and provided for job security, including layoff and bumping rights. The legislation also prevented employers and unions from bargaining on those issues in the future. A number of unions challenged the legislation, arguing that it violated the Charter’s guarantee of freedom of association.

The Supreme Court’s decision

The Supreme Court agreed with the unions and held that the legislation violated the Charter. In reaching this conclusion, the Court reversed its earlier jurisprudence:

In earlier decisions, the majority view in the Supreme Court of Canada was that the guarantee of freedom of association did not extend to collective bargaining. Dunmore opened the door to reconsideration of that view. We conclude that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected.

The legislation substantially interfered with the process of collective bargaining by disregarding past processes of collective bargaining and preemptively undermining future processes of collective bargaining. It therefore breached s. 2(d). The legislation could not be saved under s. 1 of the Charter. While the government’s objective of improving the delivery of health care services was important, the legislation did not minimally impair the rights of employees.

Read the Supreme Court’s decision

Steven Barrett and Ethan Poskanzer represented the intervener, Canadian Labour Congress.

Read an article by Steven Barrett in which he predicted that the Court might reconsider its previous jurisprudence in light of its decision in Dunmore v. Ontario (Attorney General).