The Ontario Court of Appeal has upheld the constitutionality of the Expenditure Restraint Act (the “ERA”), introduced in 2009, which mandates, among other things, maximum salary increases for “in house” lawyers employed in the federal public sector.
After two years of unsuccessful bargaining between the Association of Justice Counsel (“AJC”), on behalf of the employees, and the Treasury Board Secretariat (“TBS”), on behalf of the Government, the Government enacted the ERA, effectively prohibiting any wage increases above the amounts contained in the final offer which had been made by the TBS. The AJC brought a constitutional challenge, claiming that the ERA infringed on the freedom of association guaranteed by s. 2(d) of the Charter of Rights and Freedoms (the “Charter”) by removing the ability to bargain over wages.
In a unanimous decision, the Court of Appeal noted that although the TBS had taken a tough bargaining position on wages, the AJC had not been denied the opportunity to present wage demands and that the TBS had considered those demands in good faith. The Court further affirmed that since s. 2(d) only guarantees a process, and not a particular result, it was not open to the AJC to claim that s. 2(d) was violated simply because the process of collective bargaining had failed to yield an agreement. As the ERA did not impede the AJC’s ability to engage in a meaningful process of collective bargaining, there was no violation of freedom of association rights protected by the Charter.
This case is yet another attempt by the Courts to clarify the government’s ability to impose wage freezes and otherwise affect the results of collective bargaining in response to fiscal demands.
For information on how legislated wage freezes might impact your organization, or for any other questions related to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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