New Supreme Court of Canada Decisions on Collective Bargaining, the Right to Strike and Communications by Employers During Union Organizing Activities

In January the Supreme Court of Canada released three decisions that will have significant impacts upon labour relations across the country.

In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Court concluded that the freedom of association entrenched in s. 2(d) of the Charter of Rights and Freedoms “protects the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals.” The Court reasoned that a meaningful process of collective bargaining gives employees meaningful input into the selection of their collective goals, and a degree of independence from management sufficient to allow members to control the activities of the association, having regard to the industry and workplace in question. However, meaningful collective bargaining is not about the outcome, but rather a form of labour relations process.

In Meredith v. Canada (Attorney General), 2015 SCC 2 the Court held that the Federal government’s Expenditure Restraint Act, which froze public sector wages to 1.5 % increases for the years 2008 to 2010, did not substantially interfere with the labour relations process so as to infringe RCMP members’ freedom of association. The Court specifically held that since the wage freeze was consistent with other public sector negotiated collective agreements, was time-limited and still permitted the RCMP to negotiate, it did not impact on the right to collectively bargain.

In the third decision, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the Court struck down legislation limiting the right to strike and authorizing broad essential services designations for public sector employers. Saskatchewan had enacted the Public Essential Services Act, which enabled the government to determine which public sector employees were permitted to strike, and when, and to prescribe essential services with no ability to arbitrate and limited ability for review by the Saskatchewan Labour Relations Board. The Court struck down the legislation, holding that the determination of essential services designations under the legislation was too broad and over-reaching, such that it prohibited access to any meaningful alternative mechanism for resolving collective bargaining impasses, including arbitration, and infringed the freedom of association. However, the Court upheld the Trade Union Amendment Act, which required a higher level of support for certification, a lower level of support for decertification, and permitted employers to communicate facts and opinions during certification and decertification so long as the communication is done in a way:

“…that does not infringe upon the ability of the employees to engage in their collective bargaining rights in accordance with their freely expressed wishes.”

These decisions will have significant impact in the years to come as these decisions are further analyzed and applied by the Labour Relations Boards and lower courts across the country.