In a landmark decision that narrows the constitutional right of workers to collectively bargain with their employer, the Supreme Court of Canada has ruled that there is no “one‐size fits all” approach when it comes to implementing a system of labour relations.
In Ontario (Attorney General) v. Fraser (“Fraser”)1, the Court considered the constitutionality of the labour relations regime that applies to Ontario’s farm workers. The legislation in question provided farm workers with various labour relations rights including the right to join an employees’ association and the right to make representations to their employer concerning the terms and conditions of their employment. That said, the legislation did not include many of the other protections that have come to be associated with the traditional labour relations model in Canada.
Despite these deficiencies a majority of the Court agreed that the law should be upheld. In the reasons that followed, the Court spent a considerable amount of time rehashing its decision from Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health Services”).2 In that case, the Court had taken the bold step of extending constitutional protection to the collective bargaining process.
Setting aside calls to overturn B.C. Health Services, Chief Justice McLachlin and Justice LeBel, on behalf of the majority, held that the decision remained good law insofar as it merely ensured that workers have a constitutional right to make collective representations to their employer and to have their collective representations considered in good faith. They went on to stress that the Court’s decision in that case was not to be seen as an endorsement for a particular model of collective bargaining ‐ “[w]hat is protected is associational activity, not a particular process or result."3
While the decision in Fraser represents somewhat of a retreat from the Court’s original position regarding the constitutional status of collective bargaining rights, the splintered nature of the accompanying reasons indicates that the scope of the right to associate is very much an open question. Accordingly, employers should continue to monitor this area of the law as the Court works to find a balance between these competing viewpoints.