In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Supreme Court of Canada (SCC) was asked to determine whether the current process of collective bargaining available to members of the Royal Canadian Mounted Police (RCMP) is constitutional. In finding that the current scheme is unconstitutional, the SCC clarified the requirements for collective bargaining regimes under the right to freedom of association.

Background

The Public Service Labour Relations Act (PSLRA) allows federal employees to form trade unions and engage in collective bargaining with their respective employers. RCMP members are excluded from this regime, falling instead within a system of non-unionized labour relations. At the heart of this system is the Staff Relations Representative Program (SRRP), which was created by Parliament under section 96 of the RCMP Regulations. Under the SRRP, RCMP members are ostensibly provided an avenue to voice and pursue workplace concerns and goals.

When the case was first heard, the application judge concluded that the SRRP violated the freedom of association protected by section 2(d) of the Charter of Rights and Freedoms. He concluded that the SRRP was not an independent organization formed or chosen by RCMP members and that the interaction between the SRRP and management could not reasonably be described as “collective bargaining.”

The Ontario Court of Appeal reversed the application judge’s decision, concluding that, even though the SRRP was created by regulation, was not institutionally independent, and did not allow RCMP members to choose their bargaining agent, the system still allowed members to act collectively and pursue workplace issues in a meaningful way.

Upon applying the relevant legal principles to the facts of the case, the SCC found the system to be unconstitutional. The SCC noted, in particular, that the system was imposed upon RCMP members by regulation and did not allow them to advance their workplace concerns free from management’s influence. Given the relationship between the PSLRA and section 96 of the RCMP Regulations, the SCC held that PSLRA exclusion was also unconstitutional. Although the SCC acknowledged that it was important to have an independent and objective police force, the SCC did not believe that the current labour relations regime ensured neutrality, stability or reliability, particularly because other police forces across Canada allow their officers to form unions. The SCC deemed it appropriate to postpone the invalidity of the exclusion for twelve months, presumably to allow the government sufficient time to create a new regime.

Freedom of Association – A Constitutional Collective Bargaining Process

The SCC has previously held that the right to freedom of association includes the right of employees to engage in a process of meaningful collective bargaining, where “meaningful collective bargaining” involves the right to join together, make collective representations to the employer, and have those representations considered in good faith.

In Mounted Police, the SCC confirmed that the right to freedom of association protects three classes of activities: (1) the right to join with others and form associations; (2) the right to join with others to pursue other constitutional rights; and (3) the right to join with others to meet, on more equal terms, the power and strength of other groups and entities. The SCC also reaffirmed that the right to a meaningful process of collective bargaining is a necessary element of the right to pursue workplace goals in a meaningful way, which falls within the ambit of freedom of association.

Although previous cases had considered whether a particular labour relations regime made it “effectively impossible” for employees to achieve workplace goals, the SCC in Mounted Police preferred the test of “substantial interference” – in other words, a system that substantially interferes with a meaningful process of collective bargaining by reducing employees’ negotiating power is inconsistent with the freedom of association enshrined in section 2(d) of the Charter. Potentially problematic conduct includes laws and regulations that restrict the subjects that can be discussed or impose arbitrary outcomes; ban recourse to collective action without adequate countervailing protection; make employees’ workplace goals impossible to achieve; or set up a process that employees cannot effectively control or influence.

In sum, the SCC stated that there are two essential features of any constitutional collective bargaining regime – choice and independence – and that these elements must be assessed together to determine whether employees are able to associate and meaningfully pursue collective workplace goals. On the topic of employee choice, the SCC commented that the Charter requires a degree of choice that enables employees to have effective input into the selection of their collective goals. Hallmarks of choice include the ability to form and join new associations, change representatives, set and change collective workplace goals, dissolve existing unions, and expect representatives to be accountable to members. Similarly, in assessing whether a labour relations regime provides the appropriate amount of independence to employees, courts should consider whether employees are able to amend the association’s constitution and rules, elect representatives, control the association’s administration, and control the activities the association chooses to pursue.

Implications

After the Mounted Police decision, labour relations regimes will be judged on whether they afford employees and their associations a sufficient degree of choice and independence from management. These are not merely factors for courts to balance against other important considerations; rather, these criteria have now been granted prominence as the hallmarks of a constitutional collective bargaining process.

The SCC’s decision in Mounted Police could have far-reaching effects on existing labour relations models across a number of industries. It is true that the majority of the SCC emphasized that the dual elements of choice and independence could be found in a variety of labour relations models. However, the lone dissenting judge expressed concerns that requiring both choice and independence, rather than a broader criterion of “representativeness”, effectively entrenches one model of independent and adversarial labour relations, commonly referred to as the “Wagner model.” Furthermore, the dissenting judge commented extensively on the fact that the SCC appears to have relaxed the test for unconstitutionality by replacing a threshold of “effective impossibility” with one of “substantial interference.”

It remains to be seen whether non-Wagner models will be found to pass constitutional muster. This uncertainty may give rise to concerns in industries where other forms of collective bargaining have historically been effective, notwithstanding limitations on employee choice and independence. Although the principles endorsed by the SCC may be legitimate, only time will tell whether the Mounted Police decision will have unintended and detrimental consequences on existing labour relationships.

 Many thanks to Jennifer Bernardo for her assistance in drafting this article.