Wednesday, 25 February 2015

Guest Blog: Full Freedom of Association Wins Canadian Charter Protection


Guest Blog: Full Freedom of Association Wins Canadian Charter Protection

 

Note: The blog below is by my friend and colleague, Roy J. Adams, Sallows Human Rights Chair Emeritus, University of Saskatchewan and Professor Emeritus, McMaster University. Roy started working on human rights when he joined the now defunct Theme School on Human Rights and International Justice (which I directed from 1993 to 1999) at McMaster University to teach labour rights. Since then he has become a noted international expert in the field and is the author of the entry on Labor Rights in David P. Forsythe, ed. Encyclopedia of Human Rights (Oxford University Press, 2009), vol. 3, pp. 384-94. In its most recent decisions his work has been cited by the Supreme Court of Canada more frequently than that of any other author.

 

 

On January 31, 2015, the Supreme Court of Canada (SCC) “constitutionalized” the right to strike, providing protection under Canada’s 1982 Charter of Rights and Freedoms to the last of the three key elements of freedom of association at work.

 

Under international labour/human rights law, freedom of association at work has three major components: the right of working people to organize themselves into unions, the right of working people’s associations freely to negotiate conditions of work with relevant employers, and the right of employees to strike (without putting their jobs in jeopardy or otherwise being ‘punished’) if those negotiations fail.

 

Those general principles have been elaborated over the past century by the International Labour Organization (ILO), the UN agency primarily responsible for global labour standards. The ILO, of which Canada is a member, has evolved a rich jurisprudence regarding the three basic rights. Despite being bound by ILO standards, with increasing frequency and heedlessness over the past seven decades Canada has offended them. Indeed the bulk of the ILO’s jurisprudence regarding the strike rights of public sector workers has been developed in response to complaints by Canadian public sector unions. Shamefully, that body of decisions is known around the world as the Canadian Jurisprudence.

 

Acceding to the argument that effective labour relations require expertise that it does not possess, the SCC decided in the 1980s that, when it came to collective bargaining and striking, it would defer to legislatures. Until early in the 21st century, Canadian courts tolerated the growing delinquency of legislative branch of government.

 

But beginning with a case regarding farmworkers (Dunmore) – to whom the government of the province of Ontario had refused to give any legal protection to organize, bargain or strike – the SCC in 2001 began to change its tune. It ordered Ontario to effectively protect agricultural workers’ rights. In its 2007 Health Services Decision regarding the bargaining rights of health care workers in British Columbia, Canada’s highest court found unconstitutional government interference with collective bargaining. It gave a ringing endorsement to collective bargaining as a critical pillar of “human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy.” (see Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, paragraph 81).

 

In both of those cases, the Supreme Court relied heavily on international labour/human rights law. But that law was out of sync with Canadian labour policy, and Canadian governments regarded those decisions as aberrations. In response to the Dunmore decision, the Ontario government came up with a clever scheme to deal with farmworkers that just barely conformed with international standards but proved to be of little value to unions in the agricultural industry that had grown used to bargaining in a familiar statutorily-imposed format that provided for a legally protected right to strike should bargaining reach impasse. The Ontario government’s response to Dunmore, known as the Agricultural Employees Protection Act, provided for neither a right to strike nor an effective alternative such as binding arbitration and so went unused.

 

Even though the SCC continued to rely on international law, governments went on willfully offending that jurisprudence and in the process pressured the court to abandon its new course and reinstate the status quo. In two recent decisions, the court met that challenge.

 

Under international law all workers are supposed to be able to associate to pursue their employment interests, but throughout the twentieth and into the twenty-first century the federal government refused to allow the Royal Canadian Mounted Police, Canada’s national police force, to do that. On Jan 16, the SCC said that the government must end that ban (see commentary, including mine, at lawofwork.ca ). International law permits governments to make an exception with regard to police, but in Canada nearly all police forces except for the Mounties are already organized, and the SCC found the Federal Government’s arguments against an exception to be unconvincing.

 

On January 31, 2015, in a case concerning a Saskatchewan statute that, contrary to international standards, forbade public sector workers from striking under specified circumstances, the SCC declared that the right to strike was protected under the Charter’s freedom of association clause (for more commentary, including mine, see lawofwork.ca).

 

The question now is: how much difference will these court decisions make? The SCC has strongly indicated that it will continue to rely on international law. It said in Health Service and repeated in its SFL (right to strike) decision: “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified” (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 at paragraph 64). With regard to freedom of association, the ILO constitution is a human rights document and that organization’s jurisprudence is the roadmap to effective protection and promotion of that right. So, the germane and correct thing for Canadian governments to do is to begin the process of bringing their statutes and policies in line with international law. If they do that, the human rights of Canadian workers will be progressively and rightfully protected. If they continue to struggle against that standard we will likely have a series of constitutional crises and the neglect of workers’ rights will persist.

 

I have been promoting compliance with international freedom of association standards in Canada for more than two decades and have met with a generally lethargic response. The unstated view seems to be that freedom of association is not really that important because employment laws and policies insure that Canadians are well enough paid and otherwise treated by their employers. The Satanic mines and mills are gone; the less-well-off have a government and charitable safety net to fall back on.

 

That view fails to take into consideration that approximately 70% of Canadian working people have no union representation and are being daily indoctrinated to tolerate and  adjust to non-democratic governance. And since there is no generally available scheme for fairly settling individual disputes, workers have no option other than to accept decisions of their superiors, even those that they regard to be unfair and unjust. Their other option is to quit their job, putting their economic wellbeing in jeopardy.

 

Under such conditions worker dignity and freedom and autonomy are compromised. To survive, too many must kow-tow to the boss no matter how arbitrary that person may be. Nor is such a system good for those in charge who come to think that they have a right to command and that democratic values are unimportant.

 

Too few seem to realize that freedom of association is a fundamental building block on which rests our entire human rights superstructure.

 

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