Freedom of Association and Trade Unions

Freedom of Association is a constitutionally protected right.  Trade Unions benefit from the right and, as today’s decision in Independent Electricity System Operator v. Canadian Union of Skilled Workers, 2012 ONCA 293 holds, if the right is impossible meaningfully to exercise as a result of legislation, a remedy may follow.  The author notes the right protected is protected only in fairly extreme cases:

[56]     The Divisional Court recognized that s. 2(d) protects “the right of employees to associate in a process of collective action to achieve workplace goals, but does not ensure a particular outcome in a labour dispute or guarantee access to any particular statutory regime”:  B.C. Health Services, para. 19.  I agree with the Divisional Court that freedom of association, as guaranteed by s. 2(d), is enjoyed by individuals, not by unions. 

[57]     As Fraser clarifies, at para. 54, B.C. Health Services “affirms a derivative right to collective bargaining, understood in the sense of a process that allows employees to make representations and have them considered in good faith by employers, who in turn must engage in a process of meaningful discussion.”

[58]     For there to be a breach of s. 2(d) there must be “substantial interference” with associational activity.  The Divisional Court relied on the articulation of the substantial interference test as set out at paras. 92-93 of B.C. Health Services:

To constitute substantial interference with freedom of association, the intent or effect must seriously undercut or undermine the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer that we call collective bargaining…. 

Generally speaking, determining whether a government measure affecting the protected process of collective bargaining amounts to substantial interference involves two inquiries. The first inquiry is into the importance of the matter affected to the process of collective bargaining, and more specifically, to the capacity of the union members to come together and pursue collective goals in concert.  The second inquiry is into the manner in which the measure impacts on the collective right to good faith negotiation and consultation. [Emphasis in original.]

[59]     The substantial interference test is spelled out in Fraser, at para. 47, in the following terms:

What is protected is associational activity, not a particular process or result. If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established, and the onus shifts to the state to justify the limit under s.1 of the Charter.

[60]     The threshold for establishing substantial interference with the process of collective bargaining is a high one. “In every case”, writes the majority Fraser at para. 46, “the question is whether the impugned law or state action has the effect of making it impossible to act collectively to achieve workplace goals.”