Collective Bargaining as a Constitutional Right

A Supreme Decision

It's not often that labour celebrates a decision by the courts, but a June 8th ruling by the Supreme Court of Canada, in a case involving health care unions and the British Columbia government, is a notable exception. Proclaiming collective bargaining as a "constitutional right" supported by the Charter of Rights and Freedoms, the Supreme Court has rendered a landmark decision that deserves the attention and acclaim that it is getting in labour circles around the country.

This awkwardly named case, "Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27," the outcome of which was a surprise to many in the labour movement, may well turn out to be one of the most significant rulings on labour rights for Canadian
workers in the 21st century.

The lengthy decision written by Chief Justice Beverley McLachlin and Justice Louis LeBel is 135 pages long, but it is well worth the read for its analysis and review of the history of the Court's thinking on freedom of association and collective bargaining.


In an important reversal, the Justices declared that earlier Court decisions refusing to recognize freedom of association as including the right to collectively bargaining "do not withstand principled scrutiny and should be rejected." In breaking from these earlier 1987 decisions of the Court referred to as the "labour trilogy," the Court declared that the Charter is "a living document" that "grows with society and speaks to the current situation and needs of Canadians."

This sudden recognition by Canada's highest court of collective bargaining as a fundamental right may breathe new life into ailing labour rights in Canada. As well, it may put provinces and the federal government, always quick to introduce legislation limiting and undermining collective bargaining rights of workers, on notice that the Court has a new-found appreciation of the role of collective bargaining in promoting the core values of "human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy."

In making their case for collective bargaining, McLachlin and LeBel quote Harvard Law Professor Paul Weiler on labour relations in B.C. in the 1970s. According to Weiler, "collective bargaining is not simply an instrument
for pursuing external ends, whether these be mundane monetary gains or the erection of a private rule of law to protect dignity of the worker in the face of managerial authority. Rather, collective bargaining is intrinsically valuable as an experience in self-government.


This important Supreme Court case arose out of a January 2002 attack by B.C.'s Liberal government on the rights of unionized health care workers. Claiming that a decade-long rise in health care costs in the province had created a "crisis of sustainability," the provincial government of Premier Gordon Campbell drafted Bill 29 (The Health and Social Services Delivery Improvement Act), which gutted health care workers' collective agreements and placed limits on the unions' future ability to re-establish rights lost through the unilateral government action.

Introduced and passed within three days, with no attempt to negotiate or even consult the affected unions, Act 29 gave health care employers virtual free rein in re-organizing health care delivery, and eliminated long-standing and hard won contractual protections for health care workers.

B.C. health care unions, including the Hospital Employees' Union (HEU/Canadian Union of Public Employees), the B.C. Government and Service Employees' Union (BCGEU), and the B.C. Nurses Union (BCNU) challenged the legislation in the B.C. courts, arguing that it violated the Charter of Rights and Freedoms protection of "freedom of association." In addition, they argued that because the overwhelming majority of workers affected by the Act were women, the legislation violated the "equal rights" provision of the Charter. Both claims by the unions were rejected by the provincial courts (B.C. Supreme Court and B.C. Court of Appeal). On appeal to the Supreme Court of Canada, the high court also rejected the "equal rights" argument, ruling that the legislation wasn't discriminatory simply because it targeted a specific segment of the workforce dominated by women. However, in a strong six-to-one decision, the Supreme Court proclaimed labour rights to be human rights, and boldly declared for the first time that collective bargaining is a "constitutional right" supported by the Charter.


For B.C. health care workers and their unions, the Court's decision is a much delayed victory that sends them back to the bargaining table. It's not clear if the B.C. government will withdraw entirely the unconstitutional sections of its legislation or simply amend them. The Court has suspended the enforcement of its decision for one year "to allow the government to address the repercussions of this decision," but it has done nothing to redress the tremendous loss experienced by B.C. health care workers. With about 8,000 workers having been fired so far in the unconstitutional restructuring of the sector, and thousands more having had their wages and benefits slashed and their working conditions drastically changed by Bill 29, collective bargaining in B.C.'s health care sector promises to be very contentious. And the Court reminds us that collective bargaining is "a limited right," a "right to a process" and not a guarantee of "a certain substantive or economic outcome."

In recognizing collective bargaining "as the most significant collective activity through which freedom of association is expressed in the labour context," the Court reversed 20 years of Supreme Court decisions excluding collective bargaining from the Charter's protection of freedom of association.

The Justices argued that workers coming together to negotiate their terms and conditions of employment has a long history in Canadian labour relations. While bargaining has not always been supported by the Courts or legislation, its history certainly pre-dates the 1982 adoption of the Charter of Rights and Freedoms. Quoting numerous labour scholars and historians, the decision reviews the long legal battle to establish labour and bargaining rights for workers in Canada. In a ringing endorsement of bargaining expressed in the language of
human rights, they conclude that, "the right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work."

Future Court decisions on labour relations issues may be possible because of the Court's explicit and detailed rejection of the argument from earlier Charter labour cases that collective bargaining and the right to strike are "modern rights" created by legislation, and not "fundamental freedoms." In this B.C. case, the Court contends that "long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society."


Put in proper historic context, legislation did not create collective bargaining, but rather legislation eventually came to protect collective bargaining because of its fundamental importance" to society. One might also make the same case for the right to strike. Unfortunately, this case did not involve the right to strike and so it remains an open question whether the Supreme Court, in a future case, will recognize "the right to strike" as a constitutional right. Like collective bargaining, the right to strike "is consistent with, and indeed, promotes other Charter rights, freedoms and values" and therefore deserves to be recognized and protected by the Charter.

Elaine Bernard, a labour educator from Canada, is executive director of Harvard Law School's Labor and Worklife Program.