Freedom of association includes right to independent bargaining agent
Supreme Court: The Charter guarantee of freedom of association includes the right to choose an independent bargaining agent
In an historic victory for workers, the Supreme Court of Canada has held that the Charter guarantee of freedom of association includes the right to be represented by an independent association or union of employees’ own choosing.
RCMP members have always been excluded from collective bargaining in the federal public service. Specifically, s. 2(1)(d) of the Public Service Labour Relations Act excludes RCMP members from the protections of that Act. Instead, RCMP members have been governed by a non-unionized consultation process – the Staff Relations Representative Process (“SRRP”) – that is not independent of management and is imposed on them by Regulation. They challenged this scheme under s. 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association. They succeeded at trial, but the decision was overturned by the Court of Appeal. The case, Mounted Police Association of Ontario v. Canada (Attorney General), then went to the Supreme Court of Canada.
The Supreme Court’s decision
A majority of the Supreme Court of Canada agreed with the members of the RCMP. It held that the Charter guarantee of freedom of association protects a meaningful process of collective bargaining, and that this guarantee requires that employees be provided with a degree of choice and independence sufficient to enable them to determine and pursue their collective workplace goals.
The majority decision affirms a purposive, generous and contextual approach to defining the scope of the s. 2(d) guarantee of freedom of association, noting that “freedom of association is empowering, and that we value the guarantee enshrined in s. 2(d) because it empowers groups whose members’ individual voices may be all too easily drowned out”.
Significantly, the majority held that both individual rights and collective rights are essential for full Charter protection. Although the Charter generally speaks of individuals as rights holders, the majority held that there is a collective aspect to s. 2(d) rights and that “recognizing group or collective rights complements rather than undercuts individual rights”.
Adopting then-Chief Justice Dickson’s “purposive approach” in the Alberta Reference, the majority explained that s. 2(d) protects three classes of activities: “(1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities”.
The Court Rejects “Effective Impossibility” and “Derivative Rights”
The majority also clarified two key issues coming out of the earlier Fraser decision, adopted by some lower courts and relied on by the government in its submissions. Acknowledging that “some passages in Fraser seem to unnecessarily complicate the analysis” by referring to both effective impossibility and substantial interference or impairment, the majority confirmed that the proper test is whether the measures “disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining.”
The majority also clarified that collective bargaining is not a “derivative right”, in the sense that there is no precondition that must be met before the right may be claimed such as demonstrating that collective interests could not be pursued some way other than through collective bargaining.
Meaningful Process Requires Choice and Independence
Having found that freedom of association mandates a “meaningful process”, the majority explained that so far as creating and selecting a bargaining representative a “meaningful process of collective bargaining is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them”. The hallmarks of this choice include “the ability to form and join new associations, to change representatives, to set and change collective workplace goals, and to dissolve existing associations”.
So far as independence from management is concerned, the Court held it was necessary “that the activities of the association reflect the interests of the employees, thus respecting the nature and purpose of the collective bargaining process”.
While the majority noted that a variety of labour relations models may meet these requirements, the model chosen must “provide sufficient employee choice and independence to permit the formulation and pursuit of employee interests in the particular workplace context at issue”.
The SRRP Fails on Both Counts: Choice and Independence
Turning to the constitutional sufficiency of the SRRP, the majority held that the SRRP process infringes s. 2(d) both in purpose and in effect. It held that the SRRP is not an independent association, and that its purpose – “to prevent the formation of independent RCMP members’ associations for the purposes of collective bargaining” – is unconstitutional.
The majority also held that the imposition of the SRRP infringes s. 2(d) in its effect, on the basis that RCMP members cannot genuinely advance their own interests through the SRRP, without interference by RCMP management.
Evaluating the institutional structure of the SRRP, the majority held that it “is plainly not independent of RCMP management”. Furthermore, the element of employee choice is “almost entirely missing”. The majority held:
Simply put, in our view, the SRRP is not an association in any meaningful sense, nor a form of exercise of the right to freedom of association. It is simply an internal human relations scheme imposed on RCMP members by management. Accordingly, the element of employee choice is almost entirely missing under the present scheme.
The Exclusion of RCMP members from the PSLRA is Unconstitutional
In Delisle, the Court held that the exclusion of RCMP members from the PSLRA did not violate the Charter. In this case, the majority reversed that decision. It reasoned that at the time Delisle was decided, the right to collective bargaining had not been recognized under the Charter. Further, the majority found that this appeal gave it the opportunity to view the exclusion of RCMP members in its full context, including whether the alternative scheme put in place satisfied the freedom of association.
The majority found that the government’s purpose in excluding RCMP members from the PSLRA was itself unconstitutional, as it was “designed to prevent the exercise of the s. 2(d) rights of RCMP members”.
However, the majority also noted that the government is not necessarily required to include RCMP members within the PSLRA in the future, and that “it remains open to the federal government to explore other collective bargaining processes that could better address the specific context in which members of the RCMP discharge their duties”.
The Charter Limits Fail the Rational Connection and Minimal Impairment Justification Tests
In considering whether the restrictions could be justified as a reasonable limit under s. 1 of the Charter, the majority found that the government’s objective – exclusion of RCMP members from the PSLRA and imposition of the SRRP – was to “maintain and enhance public confidence in the neutrality, stability and reliability of the RCMP by providing a police force that is independent and objective”.
The majority accepted that this objective was pressing and substantial but held that the means taken to advance the objective – denying RCMP members the right to a meaningful collective bargaining regime – was not rationally connected to that objective. The majority also found that “total exclusion from meaningful collective bargaining cannot be minimally impairing”, given that there was no evidence that there was a material difference between the RCMP and every other police force in Canada where collective bargaining is permitted.
Rothstein J. Dissent
In his lone dissent, Rothstein J. adopted the “effective impossibility” test for finding a breach of s. 2(d) and accused the majority of overturning Fraser on that point. Applying this test, he held that neither choice of organization nor the independence of that association are necessary to ensure that meaningful collective bargaining can occur.
A Victory for the Labour Movement
With its clear support for employee choice and independence from management, the majority decision strongly affirms that the right to meaningful collective bargaining through a democratically selected bargaining agent which is not employer dominated is constitutionally protected by s. 2(d).
Notably, the majority decision repeatedly stressed the important role that freedom of association and collective bargaining can play in redressing the power imbalance inherent in the employer-employee relationship, explaining that “[o]nly by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can [individual employees] meaningfully pursue their workplace goals.”
While, the majority left some scope for the government to “enact any labour relations model it considers appropriate to the RCMP workforce”, this model must provide for employee choice, independence from management and ultimately meaningful collective bargaining, which has been denied to RCMP members until now.
In Meredith, Unilateral Roll-Backs of RCMP Member Wages Upheld
In a companion decision released on the same day, Meredith v. Canada, a majority of the Court held that the federal government’s Expenditure Restraint Act (ERA) wage control legislation, which rolled back agreed-upon wages increases of RCMP members for 2008-2010, did not substantially interfere with the very same consultative regime that the Court found to be constitutionally deficient in MPAO.
In late 2008, the Treasury Board rolled back the RCMP’s scheduled pay increases for 2008-2010, which had been determined following consultation through an RCMP committee called the Pay Council, comprised of management and employee representatives. This wage roll-back was confirmed when the ERA was enacted in March of 2009. Pay increases of 3.32%, 3.5% and 2% for 2008-10 were replaced with increases of 1.5% for each year.
Even though the Pay Council is “part of the scheme found to be constitutionally inadequate in MPAO”, the Court nevertheless considered whether the ERA wage controls substantially interfered with that constricted consultation process. In short, the Court found that the wage controls had only a limited impact on the Pay Council consultative process. However, this would still appear to leave open the question of how the Court will treat similar wage roll-backs in the context of different labour relations schemes outside the RCMP, which provide for meaningful collective bargaining as required by s. 2(d) including pending challenges of the ERA on behalf of other workers in the federal public service.
In its reasons, the Court sought to minimize the gravity of the wage controls imposed, emphasizing that they were consistent with other agreements voluntarily reached inside and outside the core public administration “and so reflected an outcome consistent with actual bargaining process.” The Court distinguished these wage controls from the “radical changes to significant terms covered by collective agreements previously concluded”, which were found to be unconstitutional in Health Services.
Further, the Court found that the controls did not preclude consultation on other compensation-related issues either in the past or in the future, and that they did not prevent the consultation process going forward. In that regard, the Court found it significant that RCMP members were able to successfully negotiate “significant benefits” on service pay and stand-by-pay within the existing Pay Council process. These outcomes were not “determinative”, but supported the Court’s conclusion that the ERA had a “minor impact” on associational activity within the constitutionally inadequate Pay Council process. The Court concluded that “[simply] put, the Pay Council continued to afford RCMP members a process for consultation on compensation-related issues within the constitutionally inadequate labour relations framework that was then in place.”
Justice Abella, in lone dissent, would have declared the unilateral wage roll-backs to be unconstitutional. She noted that the agreed-upon wage increases were the result of a consultative process within the RCMP, and that the absence of any meaningful opportunity to make representations about the roll-backs “had the effect of completely nullifying the right to a meaningful consultation process”.
The Canadian Labour Congress intervened in both appeals.