Speaker's Corner: Freedom of association requires authentic collective bargaining

In an editorial on June 11, Law Times editor Glenn Kauth welcomed the recent Ontario Court of Appeal ruling restricting the collective bargaining rights of RCMP members as signalling the arrival of a more balanced, less adversarial, Wisconsin-style future for labour relations.
According to the editorial, while “lots of workers would like to have more leeway to air their concerns to their employers and many Canadians are sympathetic to unions,” this “doesn’t mean they all want to engage in the traditionally adversarial style of labour negotiations that the Wagner model represents.”

Before jumping to the conclusion that the RCMP model is one that will and should commend itself to both workers and politicians, let’s look at what the Ontario Court of Appeal actually said and at the model it upheld as being consistent with the constitutional guarantee of freedom of association.

As the Court of Appeal recognized, the issue before it was whether freedom of association “guarantees workers the right to be represented in their relationship with their employer by an association of their own choosing” through a vehicle “structurally independent of management.”

One would have thought the answer to that question was self-evident and would attract a negative response only under the state-imposed single trade-union system adopted in the former Soviet Union that’s prevalent today in China and emulated in other countries that would hardly qualify as free and democratic.

However, the Court of Appeal surprisingly concluded that a top-down, employer- or legislatively imposed representational structure — one that legally and practically prevents employees from being able to choose an independent, employee-formed association as their vehicle for seeking to engage in collective bargaining — does not violate their freedom of association.

This is because, in the court’s view, collective bargaining is merely a derivative right applicable only where it is impossible for workers to advance their collective workplace interests.

According to the court, since the employer- and legislatively imposed RCMP Staff Relations Representative Program provided some opportunity for employees to express their views about workplace issues, their situation didn’t meet this impossibility standard with the result that there was no basis for deriving a s. 2(d) right under the Charter of Rights and Freedoms to bargain collectively.

There are a number of concerns with the Court of Appeal’s analysis. While some employees, as the Law Times editorial pointed out, may not want to be part of a trade union of their own choosing under the now well-established Wagner Act approach to collective bargaining, one would expect that, under any model most workers would, at the very least, expect that freedom of association protects their right to choose their own independent, arm’s-length association.

Certainly, nothing in the reasons of the Supreme Court of Canada in the Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia and Ontario (Attorney General) v. Fraser decisions remotely suggests that the right to form an independent association for the purpose of attempting to carry out associational activities — be they traditional Wagner Act collective bargaining or any other lesser forms of workplace consultation — is merely a derivative component of freedom of association.

Indeed, both the editorial and the Court of Appeal’s approach overlook the extent to which, far from being derivative, the act of forming and establishing an independent association lies at the core of what we collectively mean by freedom of association, not only in the context of trade unions and collective bargaining but also when it comes to political parties or other civil society groups.

For example, imagine if the only newspapers allowed were state-imposed. This would no more accord with freedom of expression than a state-imposed union structure respects the guarantee of freedom of association.

As professor David Doorey has pointed out in his labour law blog, “the main difference between the Chinese model of forced state unionization and the RCMP model is that the police can still form and join their own independent association.

But that independent, employee-selected association has no legal rights at all, so it is largely meaningless. The employer can simply ignore it, with the explicit approval of the Canadian state.”

Moreover, the Supreme Court has consistently recognized the importance of international law in interpreting the scope and content of s. 2(d). International Labour Organization Convention 87, Article 8 of the International Covenant on Economic, Social, and Cultural Rights, and Article 22 of the International Covenant on Civil and Political Rights — all international treaties binding on Canada — protect the right of workers to seek to collectively deal with their employer through an independent association of their own formation and choosing as a core, self-standing element of freedom of association.

Indeed, when it comes to s. 2(d) protection for the right to engage in a meaningful collective bargaining process, the majority decision in Fraser emphasized the extent to which it is “difficult to imagine a meaningful collective process in pursuit of workplace aims that does not involve the employer at least considering, in good faith, employee representations.”

At the end of the day, the notion that concerns about freedom of association do not apply where employees are precluded from choosing their own associational representative as long as they have some bare-bones consultative process lending minimal opportunity to provide input to their employer simply ignores the critical importance of ensuring the right to choose to engage in meaningful negotiations and to do so through an independent associational vehicle.

Any model, whether the 70-year-old Wagner approach or an alternative that fails to respect these basic principles, is simply unacceptable in a free and democratic society.

Admittedly, in its labour decisions related to freedom of association, the Supreme Court has expressed a strong concern about not constitutionalizing a particular model of labour relations.

However, it would be an ironic result indeed if the guarantee of freedom of association ends up constitutionally protecting only the right to representation by a non-independent company union imposed by the employer or legislation together with the right to engage in a process that can at best be charitably described as providing for the opportunity to meet and greet the employer and take part in collective begging.

For these reasons, readers should think again before accepting the editorial’s suggestion that the Court of Appeal ruling should cause us to reconsider our approach to labour relations unless we also want to rethink our views on cherished principles of democracy and freedom.

Rather than offering more balance in labour relations, preventing workers from choosing representation by their own independent association and from engaging in an authentic process of collective bargaining would result in an entirely lopsided arrangement where the power of the employer and of the state trump any meaningful freedom of association.

Steven Barrett practises in the areas of labour law as well as constitutional and public interest litigation at Sack Goldblatt Mitchell LLP in Toronto.

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