Round table Discussion in Ottawa Concludes Collective Bargaining a Human Right
By Brian B. McArthur
On Thursday February 27th, in a packed meeting room in Gatineau, Quebec, Human Resource and Social Development Canada (HRSDC) sponsored a meeting unique in the annals of Canadian labour relations history. This meeting was called to discuss the impact of the groundbreaking Supreme Court of Canada ruling in B.C. Health Services. The attendance list was a who’s who of Canadian industrial relations leadership including various union leaders, business executives, lawyers, academics and influential policy analysts. The setting was ripe for a battle over the meaning of B.C. Heath Services but none was to take place. Instead, a through discussion ensued on how this landmark decision might impact the Canadian domestic labour relations environment followed by a timely overview of how International Labour Organization (ILO) Conventions and Declarations might influence Canadian Courts and the domestic industrial relations.
All in all, despite well-meaning apologists making out cases both for and against the decision, the discussion was constructive, meaningful and timely. Without oversimplifying the consensus achieved by the participants, it was clearly established that B.C. Health Services has Constitutionalized collective bargaining as a fundamental right under the Canadian Charter. Moreover, it is clear that B.C. Health Services has blazed a path towards the possibility of the right to strike also being declared a fundamental Charter Right. The second of these two conclusions has yet to be tested before the Courts (post B.C. Health Services) but it is anticipated that a Charter challenge is imminent and that the High Court will grant leave to determine the merits of this substantial and important case.
Not everything is certain however! There exists, as many of the attending scholars pointed out, the unfortunate consequence of endless litigation associated with the ambiguities of B.C. Heath Services. There are two main reasons for this: First, the Supreme Court was exceptionally vague on the extent to which Canadian domestic law must conform to International standards; and, second, because governments are likely to slavishly guard their freedom to legislate in order to protect their particular partisan economic interests. It is anticipated therefore that these two separate, but equal, considerations will be legally pursued by governments and special interests up to and including doing whatever is necessary to either have the law narrowly interpreted or outright reversed. This may turn out to be the biggest bonanza for labour lawyers ever conceived! But despite the likely litigation, confusion and push to have the decision narrowly defined, the Supreme Court has clearly reversed itself from the earlier decisions and has finally brought this debate to a new level by including Canada’s international obligations as an aid to interpret the Charter. For that, the Court should be congratulated! Despite the temptation to affirm the now redundant labour Trilogy cases, the Court should be applauded for elevating this discussion to the next level. Are labour rights human rights? The answer must surely be a resounding ‘yes’.
1 Brian McArthur is an executive with UFCW Canada and also teaches Labour Advocacy at Laurentian University Sudbury, Ontario,