Friday, June 08, 2007

When the Union's Inspiration Through Their Lordships and Ladyships Blood Shall Run-- Health Services Bargaining Association

As commenter Radish notes, yesterday the Charter's guarantee of freedom of association didn't prevent governments from legislating labour relations as they chose. Today labour law just is constitutional law.

I've just skimmed the headnote, but a couple comments:

*This is this year's Chaoulli. In other words, it is an extraordinary intervention in an area in which the judiciary has no business. Of course, the people who will love and damn it will be precisely reversed.

*Somewhere, David Beatty's phone is ringing off the hook.

Update as I work through the case: BKN makes a good point in the comments: we now have official endorsement of Chaoulli's constitutionalization of health care delivery by 7 judges. So we have one case saying governments must reform healthcare and another saying they can't, at least not without giving the unions the right to sue on the grounds they didn't consult enough.

The nicest thing I can say about this is that the combination of cost inflation, demographics and stubborn unions probably meant that the system was going to collapse anyway, so what's the harm in a few lawyers making a living bringing that day a bit closer?

Further update: It's true that Dunmore meant that government action that made collective bargaining more or less impossible was contrary to freedom of association. But it was still possible to read that obligation as operative only where the interference was extreme, like barring a whole category of sympathetic workers from the protection of labour statutes altogether.

But this case extends the constitutional reach to the normal complaints of labour law. See paragraph 92:

Acts of bad faith, or unilateral nullification of negotiated terms, without any process of meaningful discussion and consultation may also significantly undermine the process of collective bargaining.

In other words, a breach of the (normally statutory) duty to bargain in good faith is now a constitutional violation.

There's a fundamental challenge to legislative authority here. Statutes are being judged on the basis of the process by which they were enacted, rather than their content. It seems that if the BC government had engaged in more meaningful chat with the unions prior to the statute's enactment, the result might have been different. This ignores the legislature's theoretical independence from the executive, and, more troublingly, dictates to the legislature what interest groups it must listen to. The whole nastiness with the Stuarts revolved around whether anyone could tell Parliament how to transact its business.

Another update: On a more positive note, the court leaves some things to the political process (at para. 96):

the design of uniform [sic.], the lay out and organization of cafeterias, or the location or availability of parking lots

Let it not be said that democracy is dead in this country. Although this does sound suspiciously like a list of powers of a high school student council.

Yet another update: Paragraph 113 is critical. The legislation contravenes s. 2(d) for two reasons. First, it invalidates past collective agreements and therefore undermines "the past bargaining processes that formed the basis for these agreements" (the retrospective branch of the right). Second, it limits what terms can be in subsequent agreements and "future restrictions on the content of collective agreements constitute an interference with collective bargaining because there can be no real dialogue over terms and conditions that can never be enacted as part of the collective agreement" (the prospective branch of the right).

While I don't think the retrospective branch raises constitutional issues, its violation does rub me the wrong way. I'm not a big fan of legislation that overturns existing contracts of any kind, including public sector collective agreements. I am enough of an originalist to respect the fact that the Charter was not intended to protect property rights or contractual security, but I would support a constitution that did, especially if it had the equivalents of section 1 (reasonable limits) and section 33 (legislative override). [Brief digression: the argument is certainly available that "freedom of association" includes ordinary contractual association and therefore security and freedom of contract. Why would it be any more acceptable for the government to extinguish non-parking-related terms of a non-unionized employee's contract?]

The prospective branch, though, scares me. Legislation can't limit what public sector employers can agree to with their unions in the future, cafeteria design excepted? Public sector employers are bureaucratic entities not directly accountable to the public. Their budgets come from tax money. The legislature needs to be able to limit what they can agree to. Even the firmest believer in contractual freedom (which is really what the second branch amounts to) would accept that a principal can limit what its agent is allowed to negotiate.

Summing up: It's hard to understate the significance of this case. Both security of contract (for past agreements) and freedom of contract (for future agreements) are now constitutionally protected. Legislation that changes past terms or limits the possiblities for future ones can only be upheld if there is adequate "consulation" (shades of aboriginal law). It is hard to imagine any unsuccesful public sector bargaining process not going to court now. And the court doesn't consider what that means for the prospect of there being successful bargaining processes, but it isn't good.

Case Comment of Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27

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