Monday, June 25, 2007
Supreme Court Ruling on Collective Bargaining
We are writing to you about the decision of the Supreme Court of Canada issued Friday, June 8, 2007, in Health Services and Support Facilities Subsector Bargaining Assn v. British Columbia (the British Columbia Case). This case represents a complete reversal of the Court’s jurisprudence on the guarantee of freedom of association contained in the Canadian Charter of Rights and Freedoms and recognized that the right to collectively bargain is protected by section 2(d) of the Charter. It is the position of the OFL that the decision of the Court requires the immediate review and revision of a number of existing legislative enactments.
The most pressing example is the denial of collective bargaining rights to Ontario’s agricultural workers. In Ontario, agricultural workers are excluded from the Labour Relations Act, 1995 and are governed instead by the Agricultural Employees Protection Act (AEPA) which does not protect their right to unionize or engage in collective bargaining. In January 2006, the Ontario Superior Court held that the AEPA does not violate section 2(d) of the Charter on the basis that section 2(d) does not protect collective bargaining. In light of the Supreme Court of Canada’s decision in the Health Services case it is clear that the provisions of the AEPA must be repealed and the exclusion of agricultural workers from the Labour Relations Act should be eliminated to ensure that agricultural workers can fully exercise their right to collectively bargain.
In addition, the judgement of the Court calls into question the continued validity of other legislative provisions preventing other groups of employees from exercising their right to bargain collectively, as well as restrictions on issues which can be bargained contained in Government legislation or agreements. In this connection a number of restrictions on collective bargaining have been the subject of adverse comment by international bodies. The Freedom of Association Committee of the International Labour Organization (ILO) has frequently urged Ontario to take steps to bring certain legislation in line with international conventions. These include but are not limited to the following:
1. The Labour Relations Act, 1995, so that domestic workers and certain professionals have the right to organize, bargain collectively and strike;
2. The Ontario Works Act, 1997, which prevents welfare recipients who must take part in workfare programs from organizing, bargaining collectively and striking;
3. The Education Act, which excludes the province’s principals and vice-principals from access to the collective bargaining process;
4. The Colleges Collective Bargaining Act, under which part-time college instructors are excluded;
5. Restrictions on the independence of the arbitration system; and
6. Restrictions on the rights of teachers to bargain terms and conditions of employment.
In light of the Supreme Court’s ruling in the British Columbia case that Canada’s current international law commitments provide a persuasive source for interpreting the scope of the Charter, the Ontario Federation of Labour calls upon the Government of Ontario to undertake an immediate and comprehensive review of the Province’s labour legislation and to enact modifications of legislation to ensure full compliance with the Court’s ruling and Canada’s obligations under international law.
We would be pleased to meet with you to discuss this important matter at any time.
Sincerely,
Wayne Samuelson
President
CC:
Irene Harris, Terry Downey
OFL Executive Board and Council
OFL Directors
Ethan Poskanzer, Sack Goldblatt Mitchell
The Honourable Dalton McGuinty
Premier of Ontario
Queen’s Park
Main Legislative Building, Room 281
Toronto, Ontario
M7A 1A1
Dear Premier McGuinty:
We are writing to you about the decision of the Supreme Court of Canada issued Friday, June 8, 2007, in Health Services and Support Facilities Subsector Bargaining Assn v. British Columbia (the British Columbia Case). This case represents a complete reversal of the Court’s jurisprudence on the guarantee of freedom of association contained in the Canadian Charter of Rights and Freedoms and recognized that the right to collectively bargain is protected by section 2(d) of the Charter. It is the position of the OFL that the decision of the Court requires the immediate review and revision of a number of existing legislative enactments.
The most pressing example is the denial of collective bargaining rights to Ontario’s agricultural workers. In Ontario, agricultural workers are excluded from the Labour Relations Act, 1995 and are governed instead by the Agricultural Employees Protection Act (AEPA) which does not protect their right to unionize or engage in collective bargaining. In January 2006, the Ontario Superior Court held that the AEPA does not violate section 2(d) of the Charter on the basis that section 2(d) does not protect collective bargaining. In light of the Supreme Court of Canada’s decision in the Health Services case it is clear that the provisions of the AEPA must be repealed and the exclusion of agricultural workers from the Labour Relations Act should be eliminated to ensure that agricultural workers can fully exercise their right to collectively bargain.
In addition, the judgement of the Court calls into question the continued validity of other legislative provisions preventing other groups of employees from exercising their right to bargain collectively, as well as restrictions on issues which can be bargained contained in Government legislation or agreements. In this connection a number of restrictions on collective bargaining have been the subject of adverse comment by international bodies. The Freedom of Association Committee of the International Labour Organization (ILO) has frequently urged Ontario to take steps to bring certain legislation in line with international conventions. These include but are not limited to the following:
1. The Labour Relations Act, 1995, so that domestic workers and certain professionals have the right to organize, bargain collectively and strike;
2. The Ontario Works Act, 1997, which prevents welfare recipients who must take part in workfare programs from organizing, bargaining collectively and striking;
3. The Education Act, which excludes the province’s principals and vice-principals from access to the collective bargaining process;
4. The Colleges Collective Bargaining Act, under which part-time college instructors are excluded;
5. Restrictions on the independence of the arbitration system; and
6. Restrictions on the rights of teachers to bargain terms and conditions of employment.
In light of the Supreme Court’s ruling in the British Columbia case that Canada’s current international law commitments provide a persuasive source for interpreting the scope of the Charter, the Ontario Federation of Labour calls upon the Government of Ontario to undertake an immediate and comprehensive review of the Province’s labour legislation and to enact modifications of legislation to ensure full compliance with the Court’s ruling and Canada’s obligations under international law.
We would be pleased to meet with you to discuss this important matter at any time.
Sincerely,
Wayne Samuelson
President
CC:
Irene Harris, Terry Downey
OFL Executive Board and Council
OFL Directors
Ethan Poskanzer, Sack Goldblatt Mitchell
