On September 10, 2019, the federal government announced the appointment of the first ever federal Pay Equity Commissioner. The Pay Equity Commissioner’s role is to provide leadership and direction for the administration and enforcement of the new federal Pay Equity Act (the “Act”). The Act establishes a new pay equity regime which is aimed at reducing gender based pay discrimination by ensuring all federally regulated employers take proactive steps to ensure they are providing equal pay for equal value.read more
Supreme Court of Canada Finds RCMP Labour Relations Regime Unconstitutional
Supreme Court of Canada to Consider Freedom of Association in Collective Bargaining Process provided background details regarding an upcoming decision of the Supreme Court of Canada (“SCC”). In short, currently the RCMP is prohibited from unionization. By way of decision dated January 16, 2015 the SCC has determined that the current labour regime is contrary to section 2 (d) of the Canadian Charter of Rights and Freedoms (“Charter”) (the fundamental right of freedom of association) and is therefore unconstitutional, potentially opening the door to RCMP unionization.
Section 2(d) of the Charter guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals. In the decision, the SCC has reaffirmed that section 2(d) does not guarantee an outcome, but a process. In other words, a certain labour relations scheme (i.e. “unionization”) cannot be imposed by section 2(d), but the scheme that is in place must respect the rights guaranteed by the Charter. According to the SCC, choice and independence are the two essential features of any constitutional collective bargaining regime and must be assessed together when determining whether a particular regime respects Charter rights. Employees must be provided a degree of choice and independence sufficient to enable them to determine and pursue their collective workplace interests.
The degree of choice must enable employees to have effective input into the selection of the collective goals. A scheme that holds representatives accountable to the employees who choose them ensures that the association works towards the purposes for which the employees joined together. The degree of independence required is one that permits the activities of the association to be aligned with the interests of its members. The analysis of the degree of choice and independence required is a contextual one, depending on the industry.
The SCC found that under the RCMP’s current regime, the element of employee choice is almost entirely missing, and the structure involves no independence from management. The scheme is essentially part of the chain of command and therefore the final word on all labour relations matters always rests with management. As such, the SCC found that the regime fails to achieve the balance between employees and employer that is essential for meaningful collective bargaining, leaving members in a disadvantaged, vulnerable position. The current regime is therefore unconstitutional.
The other issue considered by the SCC is the exclusion of RCMP members from the definition of “employee” in the Public Service Labour Relations Act. That Act establishes the general framework for labour relations and collective bargaining in the federal public sector. As a result of this exclusion, RCMP members have historically been excluded from collective bargaining rights. The SCC also found this exclusion to be unconstitutional, but delayed the declaration of invalidity for 12 months to allow the federal government time to implement a new regime.
It should be noted that section 1 of the Charter allows the government to disregard constitutional rights, as long as it is in “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
However, the SCC found the use of section 1 would not be appropriate in the circumstances. The SCC rejected the government’s arguments that: the exclusion of RCMP members from a statutorily protected collective bargaining process ensured the neutrality, stability and reliability of the Force or that permitting collective bargaining for RCMP members would disrupt the stability of the police force or affect the public’s perception of its neutrality. The SCC also noted that the RCMP is currently the only police force in Canada without a collective agreement to regulate working conditions.
Implications of this Decision
Choice and independence will now be the most relevant criteria when Courts consider the constitutionality of labour relation regimes.
Section 2(d) of the Charter cannot be used to impose a particular labour relations scheme. In this regard, the SCC stopped short of saying the RCMP can form a union.
It must be remembered that the Charter operates to protect individuals from government policies and actions, as such, if it is a private employer’s action or policy limiting an employee’s right to associate, the Charter will not apply.
This article was prepared with assistance from Maxime Bourgeois, Student–at–law.