Landmark Ruling Guarantees Canadian Workers Collective Bargaining Rights
A coalition of health care unions in British Columbia (B.C.) scored a groundbreaking victory on June 8 when the Supreme Court of Canada struck down key provisions of the province’s Health and Social Services Delivery Improvement Act (Bill 29). Overturning two lower court decisions and a number of its own decisions dating back to the 1980s, the country’s top court ruled that collective bargaining is constitutionally protected as part of the guarantee of freedom of association in the Canadian Charter of Rights and Freedoms.
Bill 29, passed in 2002 shortly after the election of B.C. Premier Gordon Campbell, gutted key collective agreement provisions pertaining to contracting out and layoff procedures, and prohibited the negotiation of such provisions in future collective agreements. Shortly thereafter, almost 8,000 health care workers were fired as a result of massive health care privatization across the province. Cleaning, dietary, and other hospital support services were contracted out to multinational corporations, which then cut wages by 50 percent. High staff turnover and deterioration in the quality of health services followed.
The legislation sparked widespread protests and work stoppages by members of a coalition of unions made up of the Hospital Employees’ Union (HEU), the B.C. Government Employees’ Union (BCGEU), and the B.C. Nurses’ Union (BCNU). During contract negotiations in 2004, private sector workers began walking off the job in support of a strike by the health care unions against Campbell’s demands for further concessions. A province-wide general work stoppage was avoided at the last moment when the Campbell government backed off on some of its demands.
The Supreme Court decision targets more, however, than Bill 29 and similar legislation. Its potential impact is enormous for workers in the federal public service and in many provincial public services across Canada, who are prohibited by law from bargaining such critical subjects as pensions, promotions, layoffs, the classification of jobs, and the contracting out of work.
The days of governments legislating, or threatening to legislate, striking employees back to work and imposing collective agreements may also be numbered. The Supreme Court made it clear that such unilateral state action will only be tolerated “on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks and national crisis.”
Unions are already required in many Canadian jurisdictions to provide services essential to the safety and security of the public during a strike. Governments are also, as a rule, permitted to bring in outside workers to perform non-essential services. Given this, it is hard to see how they will now be able to impose collective agreements on striking workers, absent an unusual emergency or acute budget crisis.
The impact of the decision is also potentially enormous for Canadian workers who are prohibited by law from organizing into unions. It is hard to see how these anti-union laws will withstand legal challenges now that the country’s highest court has ruled that an worker’s constitutional right to freedom of association includes the right to collective bargaining.
The United Food and Commercial Workers (UFCW), which appeared as an intervenor in the Bill 29 case, has been trying for years to organize agricultural workers in Ontario, Canada’s most populated province, where they are legally prohibited to bargain collectively. The UFCW will undoubtedly rely on the Bill 29 decision in challenging Ontario’s agricultural labor laws.
Asked about the significance of the decision, Joseph Avery, the lawyer who represented the coalition, said, “This is huge; this is unbelievable. This is going to change the landscape for collective bargaining for every union across the country.”
In the immediate term, however, it appears that little has changed for B.C. health care workers. The Campbell government is taking full advantage of the 12-month time period that the Supreme Court gave the province to comply with the judgment. According to HEU spokesman Mike Old, the Campbell government laid off 700 additional workers during the 10 days immediately following the decision. Old believes that the one-year time compliance period is too long. “The damage that’s been inflicted on seniors and on patients from Bill 29 shouldn’t be allowed to go on one day longer,” he said.
Grassroots mobilization by the B.C. union coalition and public outrage against Bill 29 were important parts of the context in which the Supreme Court considered its decision. The Canadian labor movement’s ability to mobilize its members will also be critical in ensuring that governments comply with the decision and that the courts give it as liberal an interpretation as possible.
Glen Chochla lives in Ottawa, Canada. He is a negotiator for The Professional Institute for Public Service of Canada (PIPSC), Canada’s second largest federal public service union.