The Supreme Court of Canada has issued its first decision interpreting the controversial 2007 case of BC Health Services. In BC Health Services the Court held that collective bargaining is protected under the Charter. In Fraser v. Ontario (Attorney General) the Court provides some insight into the extent of that protection.
In 2002, the Ontario government introduced the Agricultural Employee Protection Act (“AEPA”) which excluded agricultural employees from the existing labour relations scheme provided under the Labour Relations Act but provided these workers with an alternative scheme. Under the AEPA, agricultural workers were entitled to form and join employee associations and, through these associations, make representations to their employers with respect to the terms and conditions employment.
A constitutional challenge was brought by the United Food and Commercial Workers against the legislation, alleging that the AEPA failed to adequately protect the freedom of association rights of agricultural workers under the Charter of Rights and Freedoms (the “Charter”). The challenge asserted that while the employee associations could make representations to employers, and while employers were required to listen or read the representations, the legislation did not impose any obligation on employers to actually consider the representations or to bargain in good faith, thereby failing to provide for meaningful collective bargaining. They also complained that the AEPA provided no right to strike or lockout.
The majority of the Supreme Court has found that the AEPA did not violate the Freedom to Associate as the freedom does not guarantee access to any particular model of labour relations. The Freedom to Associate as it relates to “collective bargaining” protects the right to associate in order to achieve workplace goals through collective action. The majority of the Court reasoned that the AEPA met the legislature’s constitutional obligations since the employer’s obligation under the AEPA to listen to representations from an employee association implicitly required the employer to consider the representations in good faith.
In coming to this conclusion, the majority upheld the Court’s recent decision in BC Health Services, and found that an individual’s freedom of association under s. 2(d) includes an obligation on employers to bargain in good faith on workplace issues:
Section 2(d) of the Charter protects the right to associate to achieve collective goals. Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter. This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith.
The law here at issue, the AEPA, properly interpreted, meets these requirements, and is not unconstitutional. We would therefore allow the appeal.
The decision that we render today is another step in the resolution of the issues surrounding the organizational challenges faced by farm workers in Ontario. We hope that all concerned proceed on the basis that s. 2(d) of the Charter confirms a right to collective bargaining, defined as “a process of collective action to achieve workplace goals”, requiring engagement by both parties. Like all Charter rights, this right must be interpreted generously and purposively. The bottom line may be simply stated: Farm workers in Ontario are entitled to meaningful processes by which they can pursue workplace goals.
Interestingly, a concurring minority decision issued by Justice Rothstein and Charron held that the Freedom to Associate did not extend the constitutional protection to include a right to bargain in good faith and, accordingly, the scheme provided for under the AEPA was constitutional on its face. Further, Justice Rothstein would have overturned the decision of BC Health Services. The majority’s decision responded to Justice Rothstein’s minority’s decision in much detail, which suggests that there is still much disagreement, even at the Court, about the extent of the Charter protection. While this decision appears to narrow the potential implications of BC Health Services, there appears to continue to be divided views on the Charter‘s protection of collective bargaining.
If you have any questions about this and any other labour and employment law issue, please do not hesitate to contact a Mathews Dinsdale lawyer.