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CCCA62_050.qxd:CCCA_V1No2_Col-LabrEmpl-V1.qxd 09/14/2007 04:09 PM Page 50 Labour & Employment Law Charter rights revisited The Supreme Court says collective bargaining is a Charter right after all. n June 8, in Health Services and Support Decision respond. If the judgment were applied OFacilities Subsector BargainingAssociation v. The Supreme Court found that the Charter retroactively, the cost to the government British Columbia, 2007 SCC 27, the right to collective bargaining imposes a duty could be in the millions of dollars. Supreme Court of Canada reversed its own on government employers to engage in Other legislation in British Columbia previous rulings and held that collective good faith consultations with unions,and to might also be subject to attacks. For exam- bargaining is not excluded from freedom of not substantially interfere with a union’s ple, the B.C. Teachers’ Federation is meet- association rights under s. 2(d) of the ability to collectively bargain. Assessing ing to decide whether to challenge a bill Canadian Charter of Rights and Freedoms. “substantial interference” involves consider- that imposed a contract on teachers. The Why did the court change direction? ing (a) the importance of the matter affect- Federation of Post-Secondary Educators is According to the 6-1 decision’s co- ed to the process of collective bargaining, also preparing a challenge to legislation authors, Chief Justice Beverley McLachlin and (b) the manner in which the measure that erased contract terms for college and and Justice Louis Lebel, because: (a) the affects the collective right to good faith university college instructors. previous jurisprudence could not survive negotiation and consultation. What is clear is that government principled scrutiny, (b) collective bargain- The court ruled that theAct’s provisions employers nationwide will now have to ing has historically played a fundamental relating to contracting out (ss. 6(2) and engage in meaningful consultation with role in Canadian society, (c) collective bar- 6(4)) and layoffs (s. 9(a) and (c)) substan- unions before introducing legislation that gaining forms an integral part of freedom tially interfered with “matters central to could limit unionized workers’ rights.The of association under international laws,and the freedom of association,” and that these Supreme Court decision might affect pri- (d) it was necessary to reaffirm the inher- provisions could not be saved under s. 1 of vate-sector workers as well, because legisla- ent Charter values of dignity, personal the Charter. tures will be unable to pass laws that autonomy, equality and democracy. substantially interfere with the process of Ramifications collective bargaining in either the public or Background The court suspended its declaration that private sector. In 2002, the Liberal government of British the provisions of the Act were unconstitu- The decision might also force the re- Columbia privatized approximately 8,000 tional for 12 months to allow the B.C. examination of old issues, such as restric- health care jobs to reduce health-care government time to address the decision. tions on the RCMP and agricultural labour costs. Bill 29, the Health and Social Pursuing the privatization of various workers from exercising collective bargain- Services Delivery Improvement Act, declared health-care facilities in the face of the ing rights. It has even been suggested that certain provisions in the workers’ collective Supreme Court’s ruling might be the cat- this ruling may pave the way for challenges agreements, such as the prohibition against alyst for further litigation alleging that the to back-to-work legislation, wage control contracting out, unenforceable. government is acting in bad faith. statutes, and acts limiting the arbitration The government’s goal was to reduce the Nonetheless,such privatization continues. process. wages it paid unionized employees to the Two of the health-care unions involved levels paid by private (often non-union) in the action have already demanded that David L. Rice is an associate counsel with health-care employers and to allocate the the provincial government impose a mora- theVancouver office of MillerThomson LLP saved resources to patient care. The Act torium on layoffs in the health-care sector, whose practice consists of counsel work with declared important provisions of collective and have requested discussions with the the primary focus on labour,employment and agreements unenforceable and voided any government. Premier Gordon Campbell administrative law. Ian J. Smith is an asso- collective agreement provisions inconsis- has stated he will not be drawn into discus- ciate with MillerThomson’s Edmonton office tent with the Act. The trial and appellate sions about such negotiations, suggesting whose practice focuses primarily on labour, courts found no Charter violation. that his government will take a year to employment and human rights issues. 50 CCCA Canadian Corporate Counsel Association FALL 2007