Nov 9, 2022: From Right to Form Associations to Right to form Bargaining Units
April 17, 1982: Pierre Elliott Trudeau, the then Prime Minister, signing the Proclamation of the Constitution Act, 1982 in the presence of Her Majesty Queen Elizabeth II
INTRODUCTION: In every society, fundamental rights are required for empowering an individual so that she can live with dignity. Though everyone is permitted to live as she wants, anything which impinges on the rights of another individual is not permitted by the State.
A fundamental right of forming an association empowers a group of individuals. The association is permitted to do its work, as it wants, without impinging on the rights of an individual or a group of individuals. However, when an Association works or acts, the responsibility of each member of the Association is diffused among the members. This makes it difficult for the State to use its authority for performing its duty of ensuring that the Association’s working or actions do not affect other individuals or groups adversely.
STATE & ESSENTIAL SERVICES: A State used to have armed forces and police for external and internal security. Both were essential parts of the State’s existence. For them to acquire any voice, independent of the State, could not be visualized.
As the working of the States became complex, every State started developing new functional organs, which started growing bigger in the number of persons, who worked in these organs.
Though each of these organs was a part of the State, the issue was whether these were essential for the State’s existence.
FIRST ISSUE: Whether the group of persons, working in these organs, could use the Right to form an Association, became the first issue.
The tension is between two facts: 1. The groups of persons, who are working in organs of the State, may be considered as a part of the State. 2. An Association is a non-State actor. The interests of its members, to promote which the Association may have been formed, may differ from the State’s policies.
Sequence of Relevant Events:
- 1867: Through an Act of the British Parliament, Canada got its first constitution. Any amendment to the constitution, could only have been done through the British Parliament.
- 1980: Canada, along with its provinces, started the process of incorporating a Charter of Rights and Freedoms in the constitution and for bringing the constitution home to Canada. (i.e. for Canada to acquire the power to be able to change its constitution itself.)
1982: For the last time, the British Parliament approved the Canada Act and the Queen came to Ottawa to sign the Proclamation of the Constitution Act.
1987: In 1987, a labor dispute among public employees in Alberta went to the Supreme Court to consider whether striking was a right protected by the Charter (which had come into force only five years prior).
“The constitutional guarantee of freedom of association … does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike,” the Supreme Court wrote, warning against the implications of “extending a constitutional guarantee, under the concept of freedom of association, to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.”
2007: In 2007, in a landmark case, the Supreme Court said that Collective Bargaining was a right, protected by the Charter.
This overturned the earlier majority view of the Supreme Court, reflected in earlier judgements, that the guarantee of freedom of association, in the Charter, did not extend to collective bargaining.
Background: The government of British Columbia passed a legislation, that nullified existing collective agreement provisions in the health care sector. These included provisions of job security, facilitating lay-offs by the government. The legislation also prevented employers and unions from bargaining on those issues in the future. A number of unions, under the banner of Health Services & Support Facilities Subsector Bargaining Association, challenged the legislation.
The Supreme Court of Canada accepted the plea of the Association and recognized a constitutional right to collective bargaining.
2008: RIGHT TO SSTRIKE: Saskatchewan passed a legislation, which declared a large number of organs of its civil service as essential services so that the public employees lost the ability to go on strike in labor disputes. The Saskatchewan Federation of Labor took the issue before the Supreme Court. In 2007, SC had said that Collective Bargaining was a right, protected by the Charter.
The Supreme Court decided that striking itself was also a Constitutional right. “The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right,” wrote Justice Rosalie Abella. “It seems to me to be the time to give this conclusion constitutional benediction.”
The decision also adds that Canada’s “international obligations” also mandate a right to strike. “Canada’s international human rights obligations also mandate protecting the right to strike as part of a meaningful process of collective bargaining,” it reads, noting Canada’s signature on several UN treaties that express support for collective bargaining.
This decision was a direct contradiction of another Supreme Court ruling issued just 28 years prior.
COMMENTARY: Today, Terence Corcoran said, in Financial Post, thatDoug Ford had not suspended the Collective Bargaining Rights through Bill 28. He had only suspended the right to strike, which it said, was not a Fundamental Right in the Charter. (tinyurl.com/2h3sy7zx)
Financial Post legal columnist Howard Levitt recently said, “in the private sector, market discipline prevails.” No such discipline exists in government monopolies.” The result is that unions of government monopolies have the power to create problems for a citizen, with no recourse available to him.
OnFeb 19, 2015, Financial Post criticized the “legal regime that fetishizes the right to strike and something called collective bargaining rights.” (tinyurl.com/489muc5f)
It added that “the laws governing union operations in Canada are loaded in favour of union organizers. Union dues are collected whether workers want to join a union or not, strike calls are made by leaders who have no tolerance for breaches of their picket-lines. Unions retain the right to shut down services or industries to achieve their collective objectives. All workers must adhere to the strike mandate whether they want to or not.”
OTHER RELATED ISSUES RAISED by Financial Post:
- FP demanded that individual worker should have a real and implementable right of not going on strike, even when the Union leadership decides to go on strike.
- It also decried the SC decision to grant to Unions to collect union dues from a worker, who does not want to join.
- The SC decision to permit the Unions to spend Union dues on political or ideological campaigns, without consulting all the members is unfair to individual members.
In its issue of Feb 19, 2015, the Financial Post pointed out that no more than 17% of laborers in Private Sector is joining the Unions. However due to monopolization, the rate of unionization in health, education, municipal services and government bureaucracies is as high as 75%
.Notes: Please read ‘Fundamental Rights of Canadians: Let’s Defend’ at DiGiNews360.com
Please also read ‘Part 1: No organ of the Society, including Associations of School employees, is responsible for education’at DiGiNews360.com
‘Part 2: No organ of the Society, including Associations of School employees, is responsible for education’at DiGiNews360.com will also be of interest to you.