eCaseNote 2007 No. 03

Right to Collective Bargaining Upheld by Charter

Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27.

A recent Supreme Court of Canada decision released in June 2007 has affirmed that the constitutional guarantee of freedom of association includes a procedural right to collective bargaining. This affirmation may be of interest to our clients who have government affiliations when dealing with unionization.

In 2002, the B.C. legislature passed the Health and Social Services Delivery Improvement Act (the “Act”) that gave health care employers greater flexibility when dealing with their employees. This increased flexibility was granted under Part 2 of the Act which was enacted without any meaningful consultation with unions before it came into force. The Act allowed employers to organize their relations with employees in ways that would not have been permissible under existing collective agreements and voided any part of existing collective agreements that were inconsistent with Part 2 of the Act. The Act also stated that any collective agreement attempting to modify these restrictions would be nullified as well. The appellants in this case (unions and members of unions representing nurses, facilities or community sub-sectors) brought an action stating that Part 2 of the Act was in violation of ss.2(d) or s.15 of the Canadian Charter of Rights and Freedoms. The Court at both the trial and appellate levels found that Part 2 of the Act did not violate the guarantees of freedom of association and equality as protected by ss.2(d) and s.15 of the Charter.

The Supreme Court of Canada however granted leave to hear the appeal and declared that certain sections of the Act were unconstitutional. In the majority decision, McLachlin C.J. stated that the “freedom of association guaranteed by ss.2(d) of the Charter includes a procedural right to collective bargaining.” The Court further went on to comment that collective bargaining is recognized as a “fundamental aspect of Canadian society” and while the Charter does not guarantee the particular objectives sought through this association, it does guarantee the process by which the goals are realized. All aspects of the associational activity of collective bargaining are not protected by ss.2(d) however. Employee’s rights to collective bargaining are only protected against “substantial interference” from their employers as determined by a two part test. The first part involves analyzing how important the matter affected is to the process of collective bargaining, while the second part of the test deals with the impact of the collective right on good faith negotiations and consultation.

The most basic element of the duty to bargain in good faith involves an obligation to actually meet and commit time to the process. While the duty to bargain in good faith includes this element of meaningful dialogue and reasonable efforts being made to produce an acceptable contract, it does not include a duty to conclude a collective agreement or to accept any particular contractual provisions. In analyzing the sections of the Act that were under review, the Court found that certain other sections concerned only relatively minor interferences so would not contradict the protections of the Charter. However, the provisions of the Act dealing with contracting out, layoffs and bumping infringed on the employees’ right to bargain collectively and were not justifiable under s. 1 of the Charter.

From this decision, it is clear that our employer clients should be aware not to infringe on their employees’ constitutional rights to engage in collective bargaining. This right is protected from “substantial interference” from employers under ss.2(d) of the Charter which guarantees a right to freedom of association.

Should you wish to receive a full copy of this decision or discuss its implications, feel free to contact our office.



The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.