Health Services & Support Facilities Subsector Bargaining Assn v. British Columbia

In 2002, the government of British Columbia passed the Health and Social Services Delivery Improvement Act in an effort to address the rising cost of health care. The Act invalidated certain collective agreement provisions governing a number of specific issues such as contracting out, and layoff and bumping rights, giving employers the right to reorganize the workforce despite the provisions of those existing collective agreements. After the Act was passed, thousands of non-clinical support staff were laid off from B.C. hospitals. They were subsequently paid substantially less by service providers to perform the same services at the same hospitals from which they had been laid off.

A number of public sector unions challenged the Act, arguing that its interference with employees' freely negotiated collective bargaining rights violated the guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms. The case was rejected by the British Columbia Supreme Court and the British Columbia Court of Appeal. The unions appealed to the Supreme Court of Canada.

On June 8, 2007, the Supreme Court of Canada granted the appeal in Health Services & Support Facilities Subsector Bargaining Assn v. British Columbia. The Court’s decision represented a complete reversal of its previous approach to the guarantee of freedom of association in s. 2(d) of the Charter.

In previous cases, the Court had always held that collective bargaining and the right to strike were not protected by s. 2(d) of the Charter since they were “modern rights” created by legislation and were not the kind of “fundamental freedoms” that the Charter protected. It was also concerned that recognizing a right to collective bargaining would interfere with government regulation of labour relations.

However, in Health Services, the Court came to the conclusion that the reasons it had relied on in the past to conclude that s. 2(d) did not protect collective bargaining could no longer stand. After examining Canadian labour history, international law and whether including a right to collective bargaining in s. 2(d) would be consistent with Charter values, the Court reversed its earlier rulings and held that s. 2(d) does protect the right of Canadian workers to bargain collectively.

In considering what the right to collectively bargain meant, the Court concluded that the constitutional right to collective bargaining “concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment.” Therefore, s. 2(d) guarantees the process through which these goals are pursued. In this regard:

• employees have the right to unite, to present demands to employers collectively and to engage in discussions in an attempt to achieve workplace-related goals;

• government employers have a corresponding duty to agree to meet and discuss employee demands; and

• constraints are placed on governments’ ability to exercise legislative powers in respect of the right to bargain collectively.

While s. 2(d) will not protect against all aspects of the collective bargaining process, the Court held, it will protect against “substantial interference” with that process.

In determining whether the government has substantially interferred with the process of collective bargaining, a court will consider two factors: (1) the importance of the subject matter (i.e. contracting out, job security provisions, etc.) to the process of collective bargaining; and (2) the manner in which the government measure impacts on the collective right to good faith negotiation and consultation. While this latter duty is “essentially procedural” and “does not dictate the content of any particular agreement achieved through collective bargaining,” the parties must engage in “meaningful dialogue” and “make a reasonable effort to arrive at an acceptable contract.”

Applying these principles to the Health and Social Services Delivery Improvement Act, the Court held that certain sections of the Act interfered with collective bargaining and could not be saved under s. 1 of the Charter. Rather than striking the sections down immediately, the Court suspended its declaration of invalidity to allow the B.C. government time to amend the legislation so that it would comply with the Charter.

Click here to read the Court's decision.

The Canadian Labour Congress was represented by Steven Barrett and Ethan Poskanzer.