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Charter Right to Collective Bargaining Proclaimed

In the dictionary, next to the phrase “Gordian knot”, there should be a photograph of a collective agreement between the B.C. government and a public sector union. How better to describe the strange, turbulent world of public sector collective bargaining in this province?

Five years ago, B.C.’s Liberal government enacted the Health and Social Services Delivery Improvement Act. This legislation overrode the collective bargaining process in relation to hospital workers.

It gave health sector employers much greater flexibility in areas such as contracting out of clinical services, eased layoff provisions, limited bumping rights, and reduced benefits for laid off workers. It also precluded any future collective bargaining on certain topics.

Worst of all, in the eyes of B.C.’s activist public sector unions, the Act was imposed by the government without any real form of collective bargaining. This pre-emption of meaningful consultation has been a rallying point, ever since, for union advocates.

A group of public health sector unions brought the matter before the courts, claiming the Act violated Canada’s Charter of Rights and Freedoms. Undaunted by successive losses in the B.C. Supreme Court and Court of Appeal, they dropped the matter in the lap of the Supreme Court of Canada.

Seemingly against all odds, the Supreme Court of Canada reversed decades of legal reasoning and struck down portions of the Act. This result was based on the premise that collective bargaining, at least in the public sector, is a right protected by the Charter.

The key aspects of the Court’s decision focus on the procedural aspect of collective bargaining. That is the sometimes mundane process of actually sitting down together to discuss and negotiate the terms of the union-management relationship.

It was in relation to this procedural element where portions of the B.C. Act ran afoul of the Charter of Rights and Freedoms. In the words of the Court, portions of the Act constituted a virtual denial of the process of good faith bargaining and consultation.

In the short term, the Court’s decision means that B.C.’s government must now set about reversing the health care changes which have since been made under the authority of those portions of the Act. That will surely prove to be an impossible task and must lead, inevitably, to negotiations towards a mutually agreeable method of moving forward rather than back.

This is one knot that will have to be cut rather than untied. But, having been given only 12 months by the Supreme Court of Canada to straighten things out, B.C.’s government will find itself with scant bargaining leverage.

The long term impact, however, may dwarf the immediate challenge of fixing 5 years of unlawful actions. With the Court’s pronouncement on the constitutional protection of the right to engage in collective bargaining, governments may have lost their most powerful weapon in the labour relations battle.

Unlike private sector employers, governments have the ability to legislate union members back to work when collective bargaining hits a stalemate. In B.C., the provincial government has recently demonstrated that its level of tolerance for labour unrest in the public sector is low. In certain instances, this has effectively curtailed the unions’ ability to negotiate for enhanced working conditions.

The full ramifications of the Supreme Court of Canada’s decision may not be known for more than a decade. If it precludes the pre-emptive use of back-to-work legislation then, to governments engaging in public sector bargaining, that decade may seem more like a century.