Last Friday the Supreme Court released its much-anticipated decision in Mounted Police Association of Ontario v Canada (Attorney General) (MPAO). The Court ruled that both the labour relations structure imposed on Mounties and their exclusion from the act governing other federal public-servant labour relations violate Mounties’ freedom of association as per section 2(d) of the Charter.
The Court’s pronouncements in this case should be greeted with cautious optimism. While labour, and Mounties in particular, can certainly welcome the Court’s affirmation of their rights, the decision’s reach should not be overstated. In light of the content of the MPAO decision and its relationship to other Supreme Court pronouncements on freedom of association, this is a modest victory for working people.
What was decided?
The decision: The Court was asked whether excluding Mounties from the Public Service Labour Relations Act and imposing non-unionized labour relations regime (found in the Royal Canadian Mounted Police Regulations) constituted a violation of their freedom of association, guaranteed in section 2(d) of the Charter.
The Court answered with a resounding “yes”.
While the RCMP does have a type of internal system used to represent Mounties in their workplace grievances, the Staff Relations Representative Program, the Court found that it did not represent a meaningful exercise of freedom of association. It was described as “an internal human relations scheme” that represented the interests of management rather than the officers.
What can labour celebrate?
Reaffirming the purpose of 2(d): In the decision, the Court affirmed that potential violations of 2(d) should be considered through the lens of the purpose of freedom of association.
Their pronouncements on the purpose of 2(d) are compelling:The guarantee functions to protect individuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society.
Infringement of 2(d): One of the most important questions for labour is the test for deciding whether or not legislation can be considered to infringe the freedom of association.
The Court has oscillated in recent years on this question. Is legislation unconstitutional when it makes associating to pursue collective goals “effectively impossible”, or is 2(d) violated when there is a “substantial interference” with those activities?
Fortunately, in MPAO the Court has clearly answered. Freedom of association is infringed when there is a “substantial interference” with workers’ collective pursuit of workplace goals.
What is worrisome?
The scope of 2(d): choice and independence: Another important question for labour is what, exactly, is protected by 2(d).
The Court pronounces in MPAO that 2(d) guarantees a “meaningful process of collective bargaining.” But what does that guarantee include? In the words of the Court:a meaningful process of collective bargaining is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them.
On its face this seems like an endorsement of Wagner-style collective bargaining. That is not the case, however.
Concerning the independence of workers’ associations, 2(d) allows for some variation in labour relations models:Like choice, independence in the collective bargaining context is not absolute. The degree of independence required by the Charter for collective bargaining purposes is one that permits the activities of the association to be aligned with the interests of its members… Relevant considerations in assessing independence include the freedom to amend the association’s constitution and rules, the freedom to elect the association’s representatives, control over financial administration and control over the activities the association chooses to pursue.
Concerning choice, the Court tempers expectations as to what the Charter guarantees:The Wagner Act model, however, is not the only model capable of accommodating choice and independence in a way that ensures meaningful collective bargaining. The designated bargaining model offers another example of a model that may be acceptable. Although the employees’ bargaining agent under such a model is designated rather than chosen by the employees, the employees appear to retain sufficient choice over workplace goals and sufficient independence from management to ensure meaningful collective bargaining. This is but one example; other collective bargaining regimes may be similarly capable of preserving an acceptable measure of employee choice and independence to ensure meaningful collective bargaining.
In this decision the Court takes care not to broaden the scope of what is guaranteed by 2(d) freedom of association. Despite making sweeping pronouncements about the importance of protecting workers’ associations, the Court is sure to leave space for legislators to limit workers’ rights.
The scope of 2(d): meaningful collective bargaining: In MPAO the Court repeats many times that 2(d) guarantees “meaningful collective bargaining”.
What constitutes “meaningful collective bargaining” is determined in a case-by-case basis:What is required in turn to permit meaningful collective bargaining varies with the industry culture and workplace in question. As with all s. 2(d) inquiries, the required analysis is contextual.
Unfortunately, beyond the choice and independence of workers’ associations, MPAO has not clarified how to measure what is “meaningful” in the context of collective bargaining. This is the most alarming aspect of the decision.
The Court has reaffirmed its 2011 decision, Ontario (Attorney General) v Fraser, where it took a negative stance on what is “meaningful collective bargaining”. It pronounced that 2(d) only guaranteed workers the freedom “to make collective representations and to have their collective representations considered in good faith.”
That is an astonishingly weak guarantee, when viewed in context.
The Fraser decision was about the constitutionality of the Agricultural Employees Protection Act, a labour relations regime that strips agricultural workers in Ontario of any support for pursuing collective workplace goals. That legislation—a cruel joke played on some of the most vulnerable workers in the country—is still considered by the Court to constitute a mechanism for meaningful collective bargaining despite offering workers no way to leverage their employer, no realistic dispute resolution mechanism, and has consequently never been used to advance collective workplace goals.
The Fraser decision effectively defines “meaningful collective bargaining” as an employer pretending to read/listen to submissions made by their employees, then rejecting any demands they make. MPAO has, unfortunately, done nothing to upset that definition.
This is especially astonishing considering the purpose that the Court has ascribed to the freedom of association. How can freedom of association curb power imbalances when the most vulnerable people are denied its benefits?
The meaning of MPAO
MPAO is a good decision for workers in Canada, but it is not a crushing victory for the labour movement. Unfortunately, the Court has not clarified the law such that we can say for sure whether attacks on workers, like Nova Scotia’s notoriously anti-worker Bill 1, will withstand a constitutional challenge.
While the decision will undoubtedly increase the ability of Mounties to engage in collective action in pursuit of common workplace goals, the Court has left government substantial room to maneuver in its mission to tamp down workers’ rights and has done little to amend Canada’s incredibly weak standard as to what constitutes “meaningful collective bargaining” relative to the 2(d) guaranteed freedom of association.
Surely, improving wages and working conditions will continue to come from demands made by working people from below, not decreed from above.