The Charter’s Freedom of Association: Windfall or Downfall ?

1. The Charter’s Freedom of Association: Windfall or Downfall ? Sara Slinn Osgoode Hall Law School 15 August 2012

2. Charter of Rights & Freedoms (1982) 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: …(d) freedom of association. Constitution: Notwithstanding Clause 33. (1) Parliament or the legislature of a province may expressly declare … that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 … of this Charter.

3. Perspectives on Charter as a tool for labour rights • Realists / Pragmatists / Romantics (Etherington) • Fudge (2000) : Charter disappointing "But, neither have ERs and individual EEs been able to deploy Charter rights to unravel the key components of the statutory collective bargaining regime”

4. s.2(d) Charter: a short history “Trilogy” SCC cases 1987 Individual right Collective bargaining, strikes outside FOA scope Does not extend to objects or goals of an association “Decontextualized” approach Judicial deference Lavigne (1999) & Advance Cutting (2001) Maintained individual conception But applied collective conception in applying s.2(d) or 1.

5. Short history, cont. Delisle (1999) - reaffirmed Trilogy Dunmore (2001) More contextual approach – recognizing interference with freedom to associate & positive govt obligation BCHS (2007) Collective conception Procedural – not substantive Substantial interference threshold – scope and modality context driven Eliminate judicial deference No particular system Not address strikes

6. Short history, cont. Plourde (2009) Affirm BCHS private employer key contextual feature Parallel reasoning Fraser (2011) Purports to affirm BCHS “Derivative” not a “stand alone” right Replace ‘substantial interference’ with (apparent) ‘effective impossibility’ Retreat on deference (?)

7. Post-Fraser interpretation: (Association of Justice Counsel v. Canada (Attorney General),  2012 ONCA 530) Adopts ‘effectively impossible’ interpretation of Fraser & MPAO. Extends ‘effective impossibility test’: “…the substantive content of s. 2(d) must be the same whether raised as a sword to claim the positive right to an effective legislative regime to protect freedom of association or used as a shield to defend against legislation that impinges upon existing statutory protections. It follows that the “effectively impossible” test applies to this case.”

8. Post-Fraser interpretation: (Association of Justice Counsel v. Canada (Attorney General),  2012 ONCA 530) • Charter FOA includes good faith bargaining on important workplace issues • Not a mere right to make representations: requires employer to engage in a process of consideration and discussion to have them considered by the employer • Identifies fundamental elements Charter FOA requires for GFB: • parties meet and engage in meaningful dialogue. Must avoid unnecessary delays and make a reasonable effort to arrive at an acceptable contract; • protects only “the right . . . to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method”. • Does NOT: • impose a particular process. Different situations may demand different processes and timelines; • require the parties to conclude an agreement or accept any particular terms • guarantee a legislated dispute resolution mechanism in the case of an impasse; • The right to a “meaningful process” can be infringed by a ban on employee associations or by setting up “a system that makes it impossible to have meaningful negotiations on workplace matters”. 

9. Wagner model pillars Common conception: (eg. Fudge, Langille) • Exclusive, majoritarian representation • Unfair labour practice (ULP) protection • Duty to bargain in good faith • Dispute resolution mechanism (arbitration / conciliation / strike / lockout) • Duty of fair representation (Langille suggests)

10. “Process” view of Wagner Model collective bargaining Certification-- Bargaining -- Impasse -- Resolution (exclusive, Good faith Arbitration Voluntary settle majority) Mediation Arbitration award U security Conciliation Fact-finding Legislation Strike / lockout

11. Zenith: Fraser - ON Court of Appeal Winkler, C.J.: “At a minimum, the following statutory protections are required [by the Charter FOA] to enable agricultural workers to exercise their right to bargain collectively in a meaningful way: • a statutory duty to bargain in good faith; • statutory recognition of the principles of exclusivity and majoritarianism; and • a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements.”

12. Potential threats: Problematic features: (1) Contextual over abstract rights interpretation BCHS ‘unmoored the conceptual foundation’ Remains adrift (2) Procedural not substantive -> “derivative” vs “stand alone” right (3) Significantly reduced judicial deference Implications for: Certification / union security / negotiations / dispute resolution

13. Procedural – not Substantive Connected to deference question: in order to confer measure of protection on labour issues. Predicated on characterising collective bargaining as a procedure - separable from (substantive) fruits. BCHS relied on Laskin description of collective bargaining : “Collective bargaining is the procedure through which the views of the workers are made known, expressed through representatives chosen by them, not through representatives selected or nominated or approved by employers.  More than that, it is a procedure through which terms and conditions of employment may be settled by negotiations between an employer and his employees on the basis of a comparative equality of bargaining strength.” (BCHS para. 29)

14. Deference to legislature Judicial ‘no go’ zone: Early rationale: modern legislative rights such as collective bargaining require the balancing of competing interests -- therefore courts should defer to legislatures in such cases. Minority: defer to legislatures since labour relations a matter of politics and economics BUT maybe some aspects justiciable. Historically legislators protectors of labour; courts not Context of neo-liberal super-majority governments & “new constitutionalism” or “real constitution”

15. Parallellism Plourde SCC: legislation prohibiting ULP finding for closing of business “The legislature has crafted a balance between the rights of labour and the rights of management in a way that respects freedom of association. … Care must be taken not only to avoid upsetting the balance the legislature has struck in the Code taken as a whole, but not to hand to one side (labour) a lopsided advantage because employees bargain through their union (and thereby can invoke the freedom of association) whereas employers, for the most part, bargain individually.” Freedom from Association issues to be revisited.

16. Process / Derivative right:Mounted Police Association of Ontario v. Canada (Attorney General) 2012 ONCA Does the right to collective bargaining under s. 2(d) of the Charter ? guarantee workers the right to be represented in their relationship with their employer by an association of their own choosing ? NO require that the vehicle for dealing with workers’ collective concerns with management be structurally independent of management ? NO Because, none of these elements satisfy the ‘effective impossibilty’ test. Three reasons for this conclusion: RCMP members formed voluntary associations – though statutorily precluded from bargaining. Statutory EE representation body (SRRP) exists.  Not independent from ER BUT, engages in some collective workplace representation – NOT compensation The existence of the Mounted Police Legal Fund  ONCA calls it independent – but is not Not represent all officers – private, incorporated body

17. Parsing & context-driven decisions: Arbitration & dispute resolution Series of federal wage restraint legislation (ERA) decisions: Meredith et al. v. Attorney General of Canada, 2011 FC 735 ERA provisions effectively preventing the Treasury Board from considering the submissions of the RCMP Pay Council in setting wages infringed RCMP officers’ s. 2(d) rights - not justified under s. 1. Association des réalisateurs c. Canada (Procureur général),  [2012] J.Q. no 6770 ERA provisions overriding terms of pre-existing collective bargaining agreements and prevented further negotiation on wages for the period of the legislation Violated s. 2(d) - not justified under s. 1 because the government can control its allocation of funding to the CBC directly without interfering with CBC workers’ collective bargaining. Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2011 BCSC 1210 ERA provisions overriding an arbitral award did not violate  s. 2(d) Did not interfere with a freely negotiated term of a collective bargaining agreement. “Arbitration reflects the breakdown of the bargaining process and is a substitute for it, not one form of its culmination.” (para. 180) Association of Justice Counsel v. Canada (Attorney General),  2012 ONCA 530 ***

18. Arbitration – ACJ ONCA Arbitration does not attract constitutional protection (para. 39). Regarding the argument and ONSC finding on resumption of bargaining: “Further negotiation may be possible after the constitutionally protected phase of the process of bargaining has concluded but that possibility, a remote one on the facts of this case, does not expand the scope of the protected right” (para. 40)

19. Arbitration – evidence? • First contract arbitration – once commencing the process: • BC 56.0% voluntary contract; 15.5% were resolved by the mediation or voluntary agreement to seek med/arb; 6% arbitrated conclusion. • QU 37.7% voluntary contract • MB 44.7% voluntary contract

20. Looking forward… (1) Protective role for legislatures diminished / removed Notwithstanding clause (2) Likely continued ‘Taylorist parsing’ of collective bargaining & FOA effective diminishing scope of FOA (3) Contextual approach producing permanent exceptionalism (4) Revisiting of freedom from association