In companion decisions1 issued on November 4, 2011 involving the Canadian Charter of Rights and Freedoms, the BC Labour Relations Board (the "Board") has dismissed a Charter challenge and unfair labour practice complaints brought by the Ambulance Paramedics of BC, CUPE Local 873 (the "Union") against the Government of British Columbia, the Health Employers Association of BC ("HEABC") and the Emergency and Health Services Commission ("EHSC"), which operates the province-wide British Columbia Ambulance Service.
McMillan LLP represented HEABC and EHSC in the proceedings before the Board.
Following the legislated end in November of 2009 to a seven month province-wide strike by ambulance paramedics, the British Columbia government designated the EHSC as a "health sector" employer under the Health Care Employers Regulation. This had the effect of bringing the EHSC and its employees, including ambulance paramedics, under the Health Authorities Act which establishes the legislated collective bargaining regime for the health sector in British Columbia. Under the Health Authorities Act all health sector employees in British Columbia are required to be placed within one of five statutory bargaining units.
Following the designation of the EHSC as a health sector employer, the HEABC as the bargaining agent for all health sector employers in the province, applied to the Board to place the ambulance paramedics in the facilities subsector bargaining unit, which is represented by the Facilities Bargaining Association. Placement within the facilities subsector bargaining unit, which is the largest of the five statutory health sector bargaining units with approximately 50,000 members, would result in the Union and its approximately 5,000 members becoming a minority constituent union group within the larger multi-union bargaining unit.
In contrast, prior to the designation of the EHSC as a health sector employer, the Union had historically been the certified bargaining agent for a standalone bargaining unit of ambulance paramedics and was thus able to represent its members and negotiate collective agreement terms and conditions directly with the EHSC.
In the proceedings before the Board the Union argued that the decision to designate the EHSC as a health sector employer and the placement of the Union and its members in the multi-union facilities subsector bargaining unit violated section 2(d) of the Charter since "as a minority within a larger unit, its members will be prevented from associating as a group for the purpose of collective bargaining".
In reliance on the decisions of the Supreme Court of Canada in Health Services and Support – Facilities Subsector Bargaining Unit v. British Columbia2, ("Health Services"), and Ontario (Attorney General) v. Fraser3 ("Fraser"), HEABC and the BC government contended that section 2(d) guarantees a right to the process of collective bargaining, but not to any particular bargaining outcome or any particular model of labour relations or bargaining method.
The Board agreed with the BC government and HEABC and confirmed that the Supreme Court in Health Services and Fraser clearly stated that section 2(d) of the Charter "guarantees collective access to a meaningful process, not one that necessarily maximizes or preserves the parties' collective bargaining interests".
The Board held that an inquiry under Health Services and Fraser "is more narrowly focused" and depends upon "how the impugned legislation impacts on the process of good faith bargaining", including the impact on the terms of the Local 873 Collective Agreement.
In reviewing the articles of association of the Facilities Bargaining Association the Board observed that the articles provided for a representational model of majority rule subject to the duty of fair representation. Among other protections, the articles also provide for the provision of a domestic arbitration procedure to resolve disputes between constituent unions, subject to the ultimate review of the Board, for the provision of a bargaining council consisting of representatives from each of the constituent unions, and for the establishment of a negotiating committee consisting of representatives of all of the constituent unions. The Board also observed that the Articles maintained an individual role for the constituent unions to represent their members in the administration of the collective agreement.
The Board held that the "impugned legislation establishes a collective bargaining regime that provides a meaningful process through which Local 873's members may associate as a group, both in furtherance of workplace goals and to reach terms of employment" and "exert meaningful influence over working conditions" through collective bargaining. Accordingly, based on the type of protections summarized above, the Board held that the provincial health sector collective bargaining regime established under the Health Authorities Act does not violate section 2(d) of the Charter.
In its decision the Board ordered that the Union collective agreement be attached as a separate appendix to the existing health sector collective agreement between the HEABC and the Facilities Bargaining Association, in order to satisfy the Health Authorities Act requirement that there be a single collective agreement for each of the five statutory health sector bargaining units. The Board stated that the matter of integrating the terms and conditions of the ambulance paramedics Union collective agreement into the existing Facilities Bargaining Association collective agreement was "a matter for the parties to address in the ordinary course of the collective bargaining process".
The Board's decision highlights that while section 2(d) of the Charter guarantees a meaningful process of collective bargaining, it does not guarantee any particular collective bargaining objectives, nor does it guarantee a particular model of labour relations or a particular bargaining method. As stated by the Supreme Court of Canada in Health Services and Fraser, section 2(d) prohibits interference that would impact a union's ability to "exert meaningful influence over working conditions".
In summary, although unions may rely on the Charter to guarantee collective access to a meaningful process, reliance cannot be placed on section 2(d) to achieve or maintain a process that maximizes or preserves their particular collective bargaining interests or existing bargaining structures.