What the Charter Requires in Public Sector Bargaining Dispute Resolution

1. What the Charter Requires in Public Sector Bargaining Dispute Resolution Kevin Banks Director, CLCW Faculty of Law Queen’s University

2. Overview Parse SCC jurisprudence on purposes and content of right to bargain collectively Consider implications for resolution of collective bargaining disputes in the public sector

3. Method of Analysis Purposes of freedom of association Purposes of freedom of association at work Test for substantial interference in freedom of association/ capabilities of workers that must exist in fact How the right to bargain collectively is derived and specified Implications of competing specifications

4. Purposes of Freedom of Association Promote the realization of individual potential through relations with others [Fraser, para 29, quoting Dunmore at para 30] Serve Charter values of human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy [BC Health, para 81]

5. Purposes of Freedom ofAssociation at Work The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work…[BC Health, at para 82]

6. Purposes of Freedom ofAssociation at Work Collective bargaining also enhances the Chartervalue of equality. One of the fundamental achievements of collective bargaining is to palliate the historical inequality between employers and employees… In 1889, the royal Commission on Capital and Labour appointed by the Macdonald government to make inquiries into the subject of labour and its relation to capital, stated that “Labour organizations are necessary to enable working men to deal on equal terms with their employers” [BC Health, para 84]

7. Purposes of Freedom ofAssociation at Work Finally, a constitutional right to collective bargaining is supported by the Charter value of enhancing democracy. Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives [BC Health, para 85] Note that Fraser does not discuss the purposes of the right in the workplace context.

8. Test for Substantial Interference/Capabilities Required The “meaningful influence” articulation It follows that the state must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith. [BC Health, para 90]

9. Test for Substantial Interference/Capabilities Required (Cont’d) Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s.2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter. [Fraser, para 2] Laws or government action that make it impossible to achieve collective goals have the effect of limited freedom of association, by making it pointless. [Fraser, para 46]

10. Test for Substantial Interference/Capabilities Required (Cont’d) The “meaningful process” articulation The bottom line may be simply stated: Farm workers in Ontario are entitled to meaningful processes by which they can pursue workplace goals. [Fraser, para 117]

11. Right to Bargain Collectively as a Necessary Incident of Freedom of Association To constitute substantial interference with freedom of association, the intent or effect must seriously undercut or undermine the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer that we call collective bargaining. [BC Health, para 92]

12. Alternative Specifications of the Right Specification 1 (detailed, complete, not (yet) applied); right to organize, bargain and take industrial action The 1968 Woods Report explained the importance of collective bargaining for our society and the special relationship between collective bargaining and freedom of association: Freedom to associate and to act collectively are basic to the nature of Canadian society and are root freedoms of the existing collective bargaining system. Together they constitute freedom of trade union activity: to organize employees, to join with the employer in negotiating a collective agreement, and to invoke economic sanctions, including taking a case to the public in the event of an impasse. [BC Health, para 64]

13. Alternative Specifications of theRight (Cont’d) Collective bargaining, despite early discouragement from the common law, has long been recognized in Canada. Indeed, historically, it emerges as the most significant collective activity through which freedom of association is expressed in the labour context. In our opinion, the concept of freedom of association under s. 2(d) of the Charter includes this notion of a procedural right to collective bargaining. [BC Health, para 66]

14. Alternative Specifications of theRight (Cont’d) Specification 2 (general, partial? complete?): right to a process that permits employee representations and effectively requires meaningful negotiations What s. 2(d) guarantees in the labour relations context is a meaningful process. A process which permits an employer not even to consider employee representations is not a meaningful process... One way to interfere with free association in pursuit of workplace goals is to ban employee associations. Another way, just as effective, is to set up a system that makes it impossible to have meaningful negotiations on workplace matters. [Fraser, para 42]

15. Alternative Specifications of theRight (Cont’d) Specification 3 (specific, partial? complete?): right to make representations and obligation on employers to consider employee submissions with an open mind (expanded good faith) No labour relations purpose is served merely by pro forma listening or reading. To fulfill the purpose of reading or listening, the employer must consider the submission. Moreover, the employer must do so in good faith: consideration with a closed mind would render listening or reading the submission pointless. [Fraser, para 103]

16. Alternative Specifications of theRight (Cont’d) Specification 4 (specific, partial? complete?): right to make representations and duty to bargain (good faith and reasonable efforts) imposed on all employers …bargaining activities protected by s. 2(d) in the labour relations context include good faith bargaining on important workplace issues. This is not limited to a mere right to make representations to one’s employer, but requires the employer to engage in a process of consideration and discussion to have them considered by the employer. In this sense, collective bargaining is protected by s. 2(d). The majority stated: Thus the employees’ right to collective bargaining imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation. [Fraser, para 40]

17. Alternative Specifications of theRight (Cont’d) Specification 5 (certain, specific, partial?): consultation and negotiation in accordance with a duty on government employers to bargain in good faith Where it is established that the measure impacts on subject matter important to collective bargaining and the capacity of the union members to come together and pursue common goals, the need for the second inquiry arises: does the legislative measure or government conduct in issue respect the fundamental precept of collective bargaining – the duty to consult and negotiate in good faith? [BC Health, para 97]

18. Alternative Specifications of theRight (Cont’d) Specification 6 (specific, partial? complete?): right to make representations and duty of all employers to consider and discuss those representations in good faith These considerations lead us to conclude that s. 5 of the AEPA, correctly interpreted, protects not only the right of employees to make submissions to employers on workplace matters, but also the right to have those submissions considered in good faith by the employer. It follows that s. 5 of the AEPA does not violate s. 2(d) of the Charter. [Fraser, para 107]

19. Implications for Dispute Resolution in Public Sector Bargaining For public sector employers within the reach of the state action doctrine (and possibly for others as well): Duty to make good faith and objectively reasonable efforts to reach a collective agreement; Allowed to declare impasse, refuse to concede further, and at that point break off of negotiations. [BC Health, para 102]

20. Implications for Dispute Resolution in Public Sector Bargaining (Cont’d) Once impasse is reached key question arises: Does the Charter grant employees any rights after impasse is reached, other than the right to have the employer consider and negotiate or discuss in good faith any concessions that employees might make? Specifications 4, 5 and 6 imply, if they interpreted as complete, that there are none. Specifications 1 implies that there are. As does Specification 2, depending upon what “meaningful” means.

21. Implications for Dispute Resolution in Public Sector Bargaining (Cont’d) Some indication that there are no rights to exert influence that could break an impasse (and by extension therefore no rights to influence negotiation outcomes except through attempts at persuasion): Even where a matter is of central importance to the associated right, if the change has been made through a process of good faith consultation it is unlikely to have adversely affected the employees’ right to collective bargaining. [BC Health, para 129]

22. Implications for Dispute Resolution in Public Sector Bargaining (Cont’d) But this is difficult to square with the Court’s stated purposes for freedom of association at work, and with its more specific articulations of the test for substantial interference with freedom of association. It all depends upon what the Court will eventually say is required for a “meaningful” process.

23. Implications for Dispute Resolution in Public Sector Bargaining (Cont’d) If a “meaningful process” includes the right to exert economic influence, then employees, acting through their union or other association, must have a protected opportunity to: Exert that influence through industrial action; or Participate in a process that can faithfully approximate the outcomes of negotiation in the shadow of industrial action. Within these broad parameters, a wide variety of institutional arrangements would be constitutional.

24. Implications for Dispute Resolution in Public Sector Bargaining (Cont’d) • Direct imposition of terms would be a prima facie violation of section 2(d). It could be justified under section 1 of the Charter if the government can show: • A pressing and substantial purpose: i.e. a reasonable basis upon which to conclude that the imposed terms were necessary, given the nature and severity of fiscal problems; and • Minimal impairment: that it could not effectively address those problems if the terms in question were subject to collective bargaining, or if a bargaining dispute concerning them became the subject of a strike or was remitted to independent arbitration.