Analysis of Canada's New Labour Trilogy - a question of collective justice (a law student blog)
Editor's note: From time to time we will accept blogs that are not directly criminal law or justice related. In the case of the area of labour law and rights, we see a direct connection between our ability to offer Robsoncrim.com and the rights under s.2(d) of our Charter. In this regard, we were pleased to accept a student's blawg discussing developments in the 2(d) jurisprudence affecting workers' rights and collective bargaining, which we, as editors, believe is a pillar of justice in a free and democratic society. These are rights that are ever more salient in an era when students and universities bear the brunt of austerity measures wielded by governments despite minimal impacts on provincial budgets.
ANALYSIS OF THE NEW LABOUR TRILOGY
In 2015, the Supreme Court of Canada released three decisions redefining the scope of constitutional protection for workers’ rights under s. 2(d) of the Charter.1 Together, these decisions could reshape Canadian workers' collective rights. The jurisprudence now establishes that freedom of association in the labour context protects the rights of workers to:
Create, belong to, and maintain a union;
Join a union of their choosing independent from management; and
Engage in meaningful process of collective bargaining.2
These decisions are significant for the labour movement, as well as further advancing protection for the fundamental rights of workers, and are summarized below:
Mounted Police Association of Ontario v. Canada - Affirming the right of workers to join a union of their own choosing
The first decision released by the Supreme Court arose from a Charter challenge brought forward by several RCMP associations, regarding the RCMP’s Staff Relations Representative Program [SRRP]. Under this program, members cannot engage in collective bargaining, and are instead represented by elected representatives of the SRRP.3
The Court found that s. 2(d) of the Charter protects a meaningful process of collective bargaining, for both individual and collective rights;4 section 2(d) provides employees with a sufficient degree of choice to determine and pursue their collective interests;5 and further, that section 2(d) provides constitutional protection for a democratic and independent trade union movement, thus confirming that unions have the constitutional right to engage in meaningful collective bargaining on behalf of their membership.6
Meredith v. Canada - Regarding the constitutionality of legislative wage-restraint programs
Meredith came about from a dispute between the RCMP and the Federal Government, in this case with regards to the Expenditure Restraint Act (ERA), which reduced agreed upon pay increases. The dispute was whether or not the ERA violated RCMP members' right to freedom of association under section 2(d) of the Charter.7
The Court ruled against the challenge, and concluded that the legislation does not violate s. 2(d) of the Charter, seemingly contrary to the test established in B.C. Health Services.8 However, the Court held that the test still applies to assess whether state interference in the right to bargain collectively is a violation of s. 2(d), but found that the ERA did not amount to a “substantial interference”9 in meaningful collective bargaining. The Court will continue to examine whether the issue that is affected by state interference is important to the collective bargaining, and whether the degree of interference is substantial.10
Saskatchewan Federation of Labour v. Saskatchewan - Affirming the right of workers to strike
This case was addressing Saskatchewan's Public Service Essential Services Act (PSESA), whereby certain employees within the public sector can be designated as “essential”, thus prohibiting them from going on strike.11
In this landmark win for labour, the Court found that the PSESA legislation violates section 2(d) of the Charter because it prevents employees from engaging in any sort of work stoppage during the bargaining process.12 The Court found the right to strike to be a constitutional right for all workers (private or public sector), and essential to the collective bargaining process and of freedom of association. The Court held that any legislation repealing employees from engaging in any work stoppage as part of the collective bargaining process constitutes a violation of s. 2(d), now shifting the onus to the government to demonstrate the measure as justifiable under section 1 of the Charter.13
Some Questions to Consider
Will the new trilogy encourage governments to apply the Notwithstanding Clause?14
Will Labour Boards play a greater role in determining which employees are “essential”?15
Does s. 2(d) protect non-collective bargaining strikes such as political strikes?16
1 Canadian Foundation for Labour Rights, 2015 New Labour Trilogy Forum Report, (Canadian Foundation for Labour Rights, 2015), http://labourrights.ca/sites/labourrights.ca/files/documents/cflr_new_labour_trilogy_forum.pdf.
2 Cavalluzzo Shilton McIntyre Cornish LLP, "Case Law Update: An Historic Win for Workers' Rights'. The Supreme Court Of Canada Releases New Labour Trilogy," last modified January 30, 2015, http://www.cavalluzzo.com/docs/default-source/publications/case-law-update-the-supreme-court-of-canada-releases-new-labour-trilogy-%28c1249545xa0e3a%290A1F527A69D0.pdf?sfvrsn=0.
3 Fasken Martineau, "The New Labour Trilogy: The Supreme Court of Canada Reshapes Labour Law (Again)," Fasken Martineau, last modified 2015, http://www.fasken.com/the-new-labour-trilogy-the-supreme-court-of-canada-reshapes-labour-law-again/.
4 James T. Caey, "The "New" Labour Trilogy from the Supreme Court of Canada: Labour Relations Implications and Impact on Labour Relations Boards," in The End of the Charter Revolution: Looking Back from the New Normal (Edmonton2015), 3.
5 Mounted Police Association of Ontario v. Canada (Attorney General)  1 S.C.R. 3 at para. 81, 2015 SCC 1. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14577/index.do
6 Ibid., para. 55.
7 Fasken Martineau, supra note 3, The New Labour Trilogy, para. 3.
8 Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia 2007 SCC 27,  2 SCR 391. In this case, the Supreme Court of Canada held that collective bargaining was protected by section 2(d) of the Charter. The decision overruled over 20 years of jurisprudence stemming from the Court’s 1987 labour trilogy, which had held that associational rights were only exercisable by individuals, and excluded the collective activities of unions from Charter protection.
9 Meredith v. Canada (Attorney General)  1 S.C.R. 125 at para. 9, 2015 SCC 2. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14576/index.do
10 Canadian Foundation for Labour Rights, supra note 1, 2015 New Labour Trilogy Forum, 8.
11 Fasken Martineau, supra note 3,The New Labour Trilogy, para. 8.
12 Canadian Foundation for Labour Rights, supra note 1, 2015 New Labour Trilogy Forum, 36.
13 Ibid., 4, 36.
14 Caey, supra note 4, The “New” Labour Trilogy, 9.
15 Ibid., 9.
16 Canadian Foundation for Labour Rights, supra note 1, 2015 New Labour Trilogy Forum, 11.
Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2366/index.do
Meredith v Canada (Attorney General), 2015 SCC 2. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14576/index.do.
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14577/index.do.
Caey, James T. "The "New" Labour Trilogy from the Supreme Court of Canada: Labour Relations Implications and Impact on Labour Relations Boards." In The End of the Charter Revolution: Looking Back from the New Normal, 1-9. Edmonton2015.
Canadian Foundation for Labour Rights. 2015 New Labour Trilogy Forum Report. Canadian Foundation for Labour Rights, 2015. http://labourrights.ca/sites/labourrights.ca/files/documents/cflr_new_labour_trilogy_forum.pdf.
Cavalluzzo Shilton McIntyre Cornish LLP. "Case Law Update: An Historic Win for Workers' RIghts'. The Supreme Court Of Canada Releases New Labour Trilogy." Last modified January 30, 2015. http://www.cavalluzzo.com/docs/default-source/publications/case-law-update-the-supreme-court-of-canada-releases-new-labour-trilogy-%28c1249545xa0e3a%290A1F527A69D0.pdf?sfvrsn=0.
Fasken Martineau. "The New Labour Trilogy: The Supreme Court of Canada Reshapes Labour Law (Again)." Fasken Martineau. Last modified 2015. http://www.fasken.com/the-new-labour-trilogy-the-supreme-court-of-canada-reshapes-labour-law-again/.
Fudge, J. "The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond." Industrial Law Journal 37, no. 1 (2008): 25-48. doi:10.1093/indlaw/dwm038.