Labour and Employment Law Blog

The Supreme Court of Canada released a judgment last Friday that strengthens and expands the protection of freedom of association under s. 2(d) of the Charter of Rights and Freedoms. The main issue in this case was the constitutionality of the employee association scheme for members of the RCMP, who are excluded from public sector federal labour relations legislation. Instead, members of the RCMP typically advance their workplace issues through the Staff Relations Representative Program (“SSRP”).

The majority of the Court struck down the impugned legislation as violating s. 2(d) of the Charter. Although the specific result of this decision has little direct impact on most employers, as most employers' employees have access to collective bargaining, many comments from the Court exemplify a broadening perspective on freedom of association, thereby strengthening employees’ rights to collective bargaining. 

We have also heard concerns about the public safety issues emphasized by the media with respect to this case. While it is true that the RCMP was forbidden from collective bargaining to preserve the “loyalty of the members and their obedience to superior orders, which could have been disturbed by allegiance to fellow workers”, practically speaking, essential services legislation alleviates some of these concerns. Even if members of the RCMP were to unionize, and negotiations deteriorated and lead to a strike, essential services legislation prevents danger to the health or safety of the public. For example, in BC, many of the core emergency services such as nurses, municipal police, and firefighters are unionized. In the federal sector, border guards are unionized. Also, this ruling from the Supreme Court of Canada does not automatically give members of the RCMP the right to unionize under federal labour relations legislation: the government has one year to legislate an alternative scheme that does not contravene s. 2(d) of the Charter.

Notable quotes from the majority reasons about freedom of association include:

•  … s. 2(d), viewed purposively, 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.
• Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.
• Hallmarks of employee choice in this context include the ability to form and join new associations, to change representatives, to set and change collective workplace goals, and to dissolve existing associations.
• The function of collective bargaining is not served by a process which is dominated by or under the influence of management.
• Independence and choice are complementary principles in assessing the constitutional compliance of a labour relations scheme.
• The search is not for an “ideal” model of collective bargaining, but rather for a model which provides sufficient employee choice and independence to permit the formulation and pursuit of employee interests in the particular workplace context at issue.
• Choice and independence do not require adversarial labour relations; nothing in the Charter prevents an employee association from engaging willingly with an employer in different, less adversarial and more cooperative ways.
• … the right to a meaningful process of collective bargaining will not be satisfied by a legislative scheme that strips employees of adequate protections in their interactions with management so as to substantially interfere with their ability to meaningfully engage in collective  negotiations.

Mr. Justice Rothstein was the lone dissenting voice on the bench. His ardent reasons include many messages which employers may agree with, such as: “by relaxing the standard required to find a s. 2(d) violation, the majority takes freedom of association far beyond the ordinary meaning of those words and well beyond what the concept of ‘association’ has been held to include” “[t]he language used by the majority in this case creates greater rights, and imposes greater restrictions on the government, than either a plain or generous reading of s. 2(d) can logically provide…”; and “[i]mplicit in the majority’s articulation of meaningful collective bargaining is the view that management is the enemy of the employees and the only way in which employees may improve their position is through adversarial confrontation”.