A Supreme Decision: Collective Bargaining As a Constitutional Right

By Elain Bernard/Our Times?CALM

In recognizing collective bargaining "as the most significant collective activity through which freedom of association is expressed in the labour context," the Court reversed 20 years of Supreme Court decisions excluding collective bargaining from the Charter's protection of freedom of association.

The Justices argued that workers coming together to negotiate their terms and conditions of employment has a long history in Canadian labour relations. While bargaining has not always been supported by the Courts or legislation, its history certainly pre-dates the 1982 adoption of the Charter of Rights and Freedoms. Quoting numerous labour scholars and historians, the decision reviews the long legal battle to establish labour and bargaining rights for workers in Canada. In a ringing endorsement of bargaining expressed in the language of human rights, they conclude that, "the right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work."

Future Court decisions on labour relations issues may be possible because of the Court's explicit and detailed rejection of the argument from earlier Charter labour cases that collective bargaining and the right to strike are "modern rights" created by legislation, and not "fundamental freedoms." In this B.C. case, the Court contends that "long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society."

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Elain Bernard. A Labour Educator from Canada directs the labour and Worklife program at Harvard Law School. Our times is an independent, pro-union Canadian magazine dedicating to promoting worker rights and social justice.