In a radical shift from prior labour cases, the Supreme Court of Canada (“SCC”) in the Health Services and Support case held that the guaranteed right of freedom of association stipulated in the Charter includes the right of Canadian workers to bargain collectively on fundamental workplace issues. This ruling will certainly make employers think twice before proposing to sidestep the collective bargaining rights of their employees.

In 2002, with minimal consultation, British Columbia passed the Health and Social Services Delivery Improvement Act as a response to the many challenges which faced its health care system. Indeed, a year earlier, the B.C. government had characterized the state of its health care system as facing a “crisis of sustainability.” In attempting to resolve this crisis, the Act had several ambitious goals, which included providing a more flexible health care delivery system, developing more cost effective and efficient ways to deliver patient care, and improving the use of human resources.

What the Act Tried to Address

The provisions relevant in the SCC proceeding relate to: 1) changes to transfers and multi-work assignment rules; 2) contracting out; 3) job security programs; and 4) layoffs and bumping rights, with respect to health care worker. These provisions afford employers more flexibility with respect to how they structure their employee relations and permit employers to act in ways which would not have been ordinarily permitted under existing collective agreements.

Why the SCC Objected

The majority opinion, written by McLachlin C.J. and Lebel J., stated the four following propositions upon which their decision rests:

  1. New approach: The reasons put forward in the past for restricting collective bargaining from the protection of s. 2(d) of the Charter can no longer stand;
  2. History on labour’s side: Restricting collective bargaining from s. 2(d) is inconsistent with the historic recognition of collective bargaining in Canada;
  3. Global perspective: The principle of freedom of association in international law encompasses collective bargaining as a key component, which should influence the Canadian interpretation of s. 2(d);
  4. Freedom in context: Including collective bargaining in the interpretation of s. 2(d) is consistent with and promotes the other rights, freedoms and values expressed in the Charter.

Test for Review

In concluding that specific provisions of the Act violated s. 2(d) of the Charter, the majority conducted a two part test:

  1. Does the Act interfere with the process of collective bargaining?
  2. Was the interference substantial as to constitute a breach of the guarantee of freedom of association under s. 2(d)? In terms of substantive review, the Court directed the following inquiries:

a. What is the nature of the affected right, which involves looking at the specific issue over which the union is bargaining?

b. How does the Act impact the underlying duty of the employer to negotiate in good faith when engaging in collective bargaining?

In answering question #1, the court noted that it is important to consider only whether the general process of collective bargaining is being interfered with; the substance of what is being bargained for is not a factor in the first part of the test. In answering question #2, the majority held that it is necessary to answer both 2(a) and 2(b) in order to conclude whether there is a substantial interference with the process of collective bargaining.

Scope of Decision

In their decision to include collective bargaining under the umbrella of rights protected under s. 2(d), the SCC was very clear to highlight that not all collective bargaining is protected. Only the procedural right to associate and bargain collectively is protected; the substantive outcome for which the employees are bargaining does not attract the same protection. Further, only collective bargaining for the purpose of achieving fundamental workplace goals is protected, and when the subject matter of the collective bargaining is of lesser importance, it will less likely be granted protection under s. 2(d). Issues traditionally considered to be important are those concerning working conditions. Issues traditionally considered to be of lesser importance are those concerning matters such as the design of uniform and the availability of parking spots.

It is important to clarify exactly who is affected by this SCC decision. The Charter only applies to state action and thus this decision is limited in its application. One form of state action is the passage of legislation, which means that legislation enacted by the government which affects employees cannot violate s. 2(d). Another form of state action is when the government is the employer. In cases when the government is the employer, the government must act in accordance with s. 2(d). Thus, this SCC decision protects the collective bargaining rights of employees who are regulated by government enacted legislation and those employees who are employed by the government.

Implications for Employers

The reason this case has spun a media frenzy is because it impacts the way employers must conduct their employee relations with respect to collective bargaining. As mentioned above, employees have the right to unite and bargain collectively which imposes corresponding duties on the employer to bargain in good faith and to facilitate the pursuit of a peaceful and productive solution to fundamental workplace issues. Collective bargaining is a fundamental aspect of Canadian labour relations and the SCC’s decision to formally declare it as such only leads to the conclusion that employers are going to have to be more respectful and responsive to their employees’ rights to collectively bargain on fundamental workplace issues.