1. Constitutionalizing Collective Bargaining Lessons from Canada for the United States

2. Recent evolution of labour’s right to bargain in Canada 1980s Supreme Court labour trilogy: right to organize but no protection for collective bargaining or strike. Rights are individual. • 2001 Supreme Court’s Dunmore Decision: right to recognition but no mandatory bargaining or strike right (collective rights recognized) • 2007 SCC Health Services Decision: Trilogy reversed. Good faith bargaining protected; still no strike right • 2011 SCC Fraser: split court; minority wants HS overturned; majority says: HS is “good law.” Still no strike right but reliance on intl law suggests it is implied

3. Why the 2007 reversal? • Canada strongly supports “labour rights as human rights” and relevant intl law • 1995 UN Summit on Social Development • 1998 ILO Declaration of Fundamental Principles and Rights at Work • 2000 UN Global Compact • 2006 Equator Principles • 2004-2011 UN Norms and Ruggie Process • All affirm human rights character of collective bargaining

4. Impact on Cdn Law and Practice • Biggest impact: Confusion. SCC relies on intl law but little understanding of intl law in Canadian legal and IR communities. Example: • In Fraser 1 (2008) Ont Court overturns Dunmore and imposes Wagner-Act Model on Ontario agriculture • That remedy goes way beyond intl law and is also inconsistent with intl law • In Fraser 2 (2011) SCC majority overturns Fraser 1

5. Agricultural Employees Protection Act • Response to SCC order that Ontario protect Ag workers constitutional rights (Dunmore 2001) • Does not specify mandatory bargaining, strike right and majoritarian exclusivity thus reviled by unions • OKed by SCC in Fraser 2. • Its consistency with intl law is dependent on how administered. Govt duty is to “promote” collective bargaining • At present On govt making no effort to promote collective bargaining in agriculture.

6. Points of friction between SCC, intl law and current Cdn practice • SCC has declared its intent to rely on intl law as prime interpretative aid. • Its 3 key recent decisions are consistent with intl law. • Conclusion: default std for Cdn govts is compliance with intl law • But they are generally not complying. Eg no promotion of cb in ont agriculture; back-to-work legislation; no revision of wagner-act model.

7. Curious Position of Unions • In 2005 NUPGE and UFCW launch “labour rights are human rights initiative.” • Central aim: promote compliance with intl law • But in 2008 these unions rally around Fraser 1 and particularly “majoritarian exclusivity” which clearly offends intl law • No major labour organization is pushing for full compliance with intl law.

8. Position of political parties and human rights groups • No political party has made full compliance with intl freedom of assn law a key issue • No human rights group has forcefully argued for full compliance with intl freedom of assn law

9. Some very tentative conclusions • The SCC is attempting to move Canada towards compliance with intl law • But there is stiff resistance from not only govts and employers but also trade unions and indifference in the human rights community

10. Questions for US • Will intl developments influence future court decisions? • Even if they do, will the Court be able to move the relevant stakeholders? • Will US labour rally around intl stds and figure out how best to make use of them?