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To guarantee a strong representation of the worker's interests, unionization can involve the creation and joining of trade organizations or workers groups. (Bora, 1941). Therefore, the scope of the unionization purpose goes beyond giving salary and bonuses to include ensuring holidays, leaves, and the welfare of all employees. A lasting and ongoing aspect of unionization, collective bargaining provides a forum for sincere discussions about terms and circumstances of employment. (Lipton, 1978). The most frequent issues that come up during such negotiations are union security and the employer's management right to control and supervise the job. In Canada, most of the workers have made claims for their right to unionization and the right to collective bargain agreements with employers under the Canadian Charter of Rights and Freedoms (Judy & Tucker, 1948). To understand these claims, it is imperative to comprehend the Canadian Charter of Rights and Freedoms and the possible and recognizable claims for unionization and collective bargain agreements thereunder.
Canadian Charter of Rights and Freedoms
Article 2 of the Charter guarantees the fundamental freedoms that are granted are among others the freedom of association granted to everyone. Further, the right to employment is impliedly entrenched by Article 6 (2) of the Charter that provides that every citizen of Canada has a right to pursue the gaining of living. The impetus of article 1 and 6 (3) of the Charter is that the freedoms of the citizens of Canada are subject to reasonable limits so long as they are not discriminatory by residence. The Charter also guarantees right to equality under Article 16(1) and provides for mechanisms for enforcement of the freedoms in the court is for remedies that the court deems fit and just to grant under Article 24.
Supreme Court of Columbia Cases
This essay will endeavour to establish if the particular and specific claims that have been made by workers in Canada. This will be done with a view of evaluating the extent of the recognition and success of the said claims. In doing this, it shall analyse the instances of the claims in four cases decided by the Supreme Court of Canada.
Health Services and Support Facilities Subsector Bargaining Assn v British Columbia (2017) 2 S.C.R 391
The case was between the Health Services and Support Facilities Subsect to Bargaining Association as the appellant among others. The judgment was handed down by the Supreme Court of Columbia on 8th February 2008 after he appellants proffered a further appeal to the Supreme Court of Canada.
The respondents were Her Majesty the Queen of Province of Columbia. Other respondents were the Attorney General of New Brunswick, Attorney General of Alberta, Confederation of National Trade Unions, Canadian Labour Congress, United Food and Commercial Workers Union Canada. This was an appeal case from the court of appeal of British Columbia. The earlier court had delved in the rich to collective bargaining.
The dispute revolved around Part 2 of Health and Social Services Delivery Improvement Act that had then been passed before any consultation amongst the unions. Part 2 of the Act had introduced changes on the rights such as multi work side assignment rights, the status of contracted employees, changes in the transfer, bumping rights. It further provided for the status of the contracted out employees and their status and job security that was contended to lead to restrictions undermining the freedom of association in the Charter.
The dispute is further illuminated by the fact that the Act gave the employers flexibility in determining the terms of agreements. It also invalidated the provisions of a collective bargain agreement that was in force then and precluded certain issues as not being capable of being the subject matter of any future collective bargain agreement with the health and social workers and their employers. Furthermore, the Act voided any part of an existing collective agreement that was inconsistent with the provisions of Part 2 and overruled any possibility of modifying the outlined restrictions under part 2 of the Act. The preceding led to an appeal proffered by the appellants to challenge the constitutionality and validity of the provisions of that Act.
The decision was that the appeal was allowed in part and section 6(2), 6(4) and 9 of the Act found to be unconstitutional with a suspension for 12 months. This was the decision of the majority court, which remained majorly guided by the finding of McLachlin CJ that the part 2 of the Act does not violate section 15 of the Charter. And that the distinctions made as to the extent of service do not amount to discrimination under the section.
Reasons given by the court are that the adverse effects related to the work to be done as opposed to the person doing the work. The right to collective bargaining is a consequential right arising from that of the freedom of association that is provided for in the charter and a culmination of the historical recognition of the right in Canadian Society. It must therefore not be excluded from protection by the provisions of article 2(d) of the Charter since the general and broad language of the Charter are consistent with the protection of the collective bargaining which was not a right of the recent origin. The right is also supported by Canada's commitment to international law. As to the scope, the court found that the right protects the ability to engage is associations together with the requisite capacity to reach their goals. Deschamps J who made the dissenting decision also agreed with the scope of the freedom of association adopted by the majority decision. Therefore, it means that the right to unite and to present demands collectively.
The provision of sections 6 and section 9 dealing with the bumping rights was amounting to interference with the righto a collective bargaining. As a result, while the Act was passed with the intention of improvement of sources, it cannot be proved that they minimally affected the employees. Additionally, the government presented no evidence of why the government did not make meaningful consultations. Consequently, the case was dismissed.
2. Reference Re Public Service Employee Relations Act (Alta) 1987 1 S.C.R
This was an application In the Matter of validity of compulsory Arbitration provisions found in Public Service Employee Relations Act and the Police Officers Collective Bargaining Act. The parties of the case were Alberta Union of Provincial Employees, Canadian Union of Public Employees and Alberta International Fire Fighters Association as the appellants together with the Attorney General of Manitoba. The respondents were the Attorney Generals of Canada, Ontario, Quebec, Nova Scotia, British Columbia, Prince Edward Island, Saskatchewan, and Newfoundland.
The dispute was an appeal of from the Court of Appeal for Alberta that had challenged the laws refereed to that prohibited strikes which are a union right and further provided for compulsory arbitration in employment disputes. The Acts also limited the arbitrability of some items and set the terms of the arbitration in prior. The application was based on the claim that the provisions were inconsistent with and a violation of the Charter. Therefore, what was in issues was the extent of constitutional recognition of a particular activity of the freedom of association and the legislative policy of regulations.
Decision of the Court was that the collective bargaining rights do not apply to trade unions independently and the appeal was to be dismissed. There was a dissenting judgment by Dickson J and Wilson J.
The reason behind the decision rationale according to Beetz, Le Dain, and La Forest JJ is that freedom of association under the article 2(d) does not include the right to bargain collectively in cases of trade unions. This concept is applied in an area of collective bargaining can apply to a very larger range of associations be it political, social or economic and therefore the constitutional guarantee for the collective bargaining for the trade unions is against public policy.
3. Ontario (Attorney General) v. Fraser 2011 SCC 20
In this third case, the parties were Attorney General of Ontario as the appellant and Michael J. Fraser suing on his behalf and behalf of United Food and Commercial Workers Union Canada and others as the respondents. This was an appeal from the Court of Appeal of Ontario.
The dispute was that the crafted law by Ontario Legislature that is Agricultural Employees Protection Act, 2002 made provisions for exclusion of farm workers. A constitutional challenge was this mounted that the provisions were unconstitutional as they encouraged discrimination and exclusion thus infringing the article 2(d) of the charter.
The decision of the court was that the appeal against the decision of unconstitutionality handed by the Court of Appeal is allowed and the action is dismissed. This was the majority decision as the learned Judge Abella J dissented.
The rationale of the finding is found in the judgment of McLachlin J who held that freedom of association is necessary to achieve collective bargaining towards a common goal. Therefore any government activity extending to the legislation amounts to negating the effect of the freedom of association. The Supreme Court endorsed the idea that there is no onerous duty on the legislature to provide for a particular form. Consequently, the court found that the legislation does not expressly refer to a requirement of negotiating in God faith is not a derogation from the finding that an affirmation by the law of the right to collective bargaining is not an affirmation to the for a particular manner of making the bargain.
Extent of Protection
An analysis of the above cases shows that the courts have well defined the extent to which the rights claims for unionization and collective bargaining can be recognized and protected. The courts have upheld the human rights claims of unionization with absoluteness in a limited sense. They have recognized certain limitations and backed them with public policy reasons. As to whether an Act or any other law affects the freedom of association under Article 2(d) of the Charter, McLachlin CJ found in the British Columbia case that the claimant ought to establish that the alleged government act has caused substantial damage to the to the right (Judy & Tucker, 1948). One such element that is important in determining the substantial interference is that of good faith in the bargaining process that demands meaningful engagement and the making of a reasonable effort towards reaching a contract that is mutually acceptable.
Also, the decision on the discrimination by article 15 of the charter reveals that such a claim shall only succeed if a person can prove the discrimination. This case shows that such is difficult to prove as the law differentiates between the discrimination at the workplace and that of the worker (Adams, 1993). In the event of the former, the bias is inherent and cannot be a ground of enforcing equality rights. Further, the Reference case shows that the unionization rights to trade unions are limited regarding making collective bargaining. Lastly, legislation is unlikely to be found to be contrary to the charter by not providing for particular means of negotiation or bargaining.
Canada has made many steps in recognizing the human rights claims in term of unionization rights as well as the rights to collective bargaining. On the same strength, the courts have recognized those rights in their entirety albeit with certain limitations. The study also shows that the limitations are necessary and are based on certain public policy reasons that have consistently received approvals throughout the Supreme Court decisions of Canada.
Adams, G. (1993). Canadian Labour Law (2nd ed.). Ontario: Canada Law Book.
Bora, L. (1941). Collective Bargaining in Canada: In Peace and in War. Food for Thought, 2(3), 8.
Judy, F., & Tucker, E. (1948). Labour Before the Law: The Regulation of Workers' Collective Action in Canada. Oxford University Press.
Lipton, C. (1978). The Trade Union Movement of Canada. Toronto: NC Press.
List of Cases
Health Services and Support Facilities Subsector Bargaining Assn v British Columbia (2017) 2 S.C.R 391
Ontario (Attorney General) v. Fraser 2011 SCC 20
Reference Re Public Service Employee Relations Act (Alta) 1987 1 S.C.R
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