2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Supreme Court of Canada to Consider Freedom of Association in Collective Bargaining Process
It is expected that on Friday, the Supreme Court of Canada will render a decision which will determine whether RCMP members have the right to form an independent association to handle collective bargaining with its employer, the Federal Government. Currently, RCMP members are represented by the Staff Relations Representation Program, an association imposed on them under the RCMP’s regulations.
Two RCMP employer associations, the Mounted Police Association of Ontario and Mounted Police Association of British Columbia, brought forth a challenge under the Charter of Rights and Freedoms. The associations argued that the RCMP regulations contravene the employees’ right to freedom of association under section 2(d) of the Charter. Essentially, the associations’ position is that the employees have the right to bargain with their employer through a union of their own choice and that RCMP Management must bargain in good faith over the terms and conditions of employment.
The matter was first considered in 2009 by the Ontario Superior Court in Mounted Police Association of Ontario v. Canada (Attorney General), 2009 CanLII 15149 (ON SC). The Superior Court sided with the employer associations, deciding that the regulations contravened section 2(d) of the Charter as it “denies members of the RCMP the freedom to form an independent association for the purpose of collectively bargaining in relation to workplace issues”.
The Ontario Court of Appeal in 2012 reversed the lower court’s decision, finding that the regulations were not unconstitutional. The Court of Appeal decided that the lower court’s interpretation of collective bargaining was “robust” and too expansive. In considering freedom of association, the Court of Appeal determined that the central question to be asked was whether it was “effectively impossible for the workers to act collectively to pursue workplace issues in a meaningful way”, which it concluded was not the case. Section 2(d) was held to protect the employees’ right to make collective representations and to have those collective representations considered in good faith, but did not require that the employer “recognize and negotiate with” the professional associations.
The upcoming Supreme Court of Canada decision on the interpretation of section 2(d) of the Charter will be of interest as it will address the scope of the constitutional protection for collective bargaining, and in particular clarify how the Charter protected freedom of association applies in the labour context.