In a landmark decision, the Supreme Court of Canada has extended "freedom of association" under the Charter of Rights and Freedoms to include a right to collective bargaining.
The decision reverses previous Supreme Court of Canada decisions and means that the changes and restrictions to contracting out, layoff and bumping rights in health sector collective agreements imposed by British Columbia's Health and Social Services Delivery Improvement Act, are contrary to the Charter. The British Columbia government now has 12 months to address the repercussions of the decision, which could be substantial since there were large numbers of layoffs of non-clinical support staff and much of the work was contracted out.
What does the decision mean for other employers? At least three things:
1. The duty to bargain in good faith now has Charter "teeth," which could lead to more stringent review of bargaining tactics and strategy by labour boards. But it is important to note that the decision is about protecting the process of collective bargaining from "substantial interference," not guaranteeing the outcome.
2. Unions are more likely to rely on international labour standards and ILO declarations to support their positions. The Supreme Court of Canada made specific reference to international law in coming to its decision.
3. Governments may be less willing to step into private sector labour disputes. The Court was most concerned with the government’s failure to consult with the unions before legislating. We can expect a government to ensure alternatives to back to work legislation are discussed before interceding in a private sector labour dispute.