As Wisconsin voters were getting set to vote in favour of their labour-bashing governor in last week’s recall election, the Ontario Court of Appeal released a decision that put a damper on union rights in this province.
To be fair, despite looming battles over government plans for a public-sector wage freeze, Ontario is unlikely to see a wide-ranging attack on unions on the lines of Wisconsin Gov. Scott Walker’s reforms in that state.
Nevertheless, in ruling on RCMP officers’ fight for traditional collective-bargaining rights, the appeal court delivered a blow to the so-called Wagner approach to labour relations with its reaffirmation of the notion that s. 2(d) of the Charter of Rights and Freedoms “does not guarantee any particular model of labour relations.”
The appeal court was ruling on the attorney general of Canada’s appeal of a 2009 Superior Court decision that found federal regulations mandating the Staff Relations Representative Program for labour relations at the RCMP was unconstitutional.
The program allows elected staff relations representatives to represent RCMP members’ interests in negotiations with management of the police force but doesn’t provide for traditional collective bargaining along the lines of the Wagner model with all of its protections and features, such as having a single and exclusive bargaining agent.
In ruling against the RCMP officers’ associations in
Mounted Police Association of Ontario v. Canada (Attorney General), the appeal court considered two recent key Supreme Court decisions on labour relations:
Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia and
Ontario (Attorney General) v. Fraser.
Among the principles behind the decision was the notion in Fraser that the right to collective bargaining under the Charter is a derivative one that imposes negative obligations on governments rather than a positive duty of protection or assistance.
“Therefore, as I understand the Fraser majority’s discussion of collective bargaining as a derivative constitutional right, a positive obligation to engage in good faith collective bargaining will only be imposed on an employer when it is effectively impossible for the workers to act collectively to achieve workplace goals,” wrote Justice Russell Juriansz on behalf of the appeal court panel.
As a result, because the Court of Appeal found the RCMP staff relations program doesn’t make it impossible for officers “to act collectively to pursue workplace issues in a meaningful way,” it sided with the government in allowing its appeal.
The ruling comes at an interesting time given the very real challenges facing the labour movement. Certainly, while unions will obviously fight to maintain the supremacy of the Wagner model, even organizations like the Canadian Auto Workers have come around to new approaches with its consideration of a plan to open up membership to people who don’t have bargaining rights.
It’s good to see and it’s frankly time for such changes given Canadians’ tepid support for unions.
While lots of workers would like to have more leeway to air their concerns to their employers and many Canadians are sympathetic to unions, that doesn’t mean they all want to engage in the traditionally adversarial style of labour negotiations that the Wagner model represents.
Many people, in fact, equate that approach to threats to their companies’ bottom lines and ultimately their jobs given the competitive pressures businesses face.
The Court of Appeal ruling, then, is a timely reminder that there are other ways of approaching labour relations that some people might find offer more balance.
