A Right to Collective Bargaining

New Orleans        A couple of months ago Mary Rowles, the ace communications director for the British Columbia Government Employees Union (BCGUE), told me that there was a huge court decision that her union and others had won.  She sent me all of the decisions and discussions.  It was unbelievable.  It seemed to be saying that there was now a constitutional right to collective bargaining in Canada.  Could this really be possible?  Did this exist anywhere in the world?

    But while visiting Toronto recently, I kept hearing, including from the Steelworkers, that there might be something new in the great north and it all pointed back to the same court victory that Mary had mentioned earlier.  The other day I got my copy of Our Times:  Canada’s Independent Labour Magazine with a clear article by Elaine Bernard of Harvard and formerly of British Columbia.  

    Here’s how it went:  A case developed from the BC Liberal government assault on unionized health care workers through unilateral action and eviscerating the agreements.  The BC health care unions, BCGUE as well as the BC Nurses Union and the Hospital affiliate of CUPE,  and the Canadian Union of Public Employees, challenged the anti-labor legislation with a brief arguing that the action violated the Charter of Rights and Freedoms in Canada, which included protection of “freedom of association.”  Fast forward from 2002 over 5 long years until earlier in 2007 and the Supreme Court in Canada in a solid 6:1 opinion held that “labour rights are human rights” and that collective bargaining is a “constitutional right” supported by the Charter.

    Elaine Bernard points out that the decision is still just a “court decision” so that it protects a “right to process” and establishes a “limited right” and is certainly not a “guarantee of a ‘certain substantive or economic outcome.”  Certainly that would be too much to dream!  Nonetheless in these hard times a victory is a victory.

    The breakthrough here — which is long overdue in the US and the rest of the world! — is the recognition that in the modern world of labor relations (as opposed to the even 50 or 100 years ago), protecting “freedom of association” for workers in a union context means  protecting  bargaining rights.  Now that collective bargaining is quickly passing into the land of “what was that?” in the US the opportunity for a similar construct from the courts is curtailed is a pipedream perhaps though several years ago labor legal scholars argued that other rights had been lost by bad habits more than bad law.  In Canada, where union membership density is still near to 30% though dropping, bargaining still means something and this decision can only strengthen the hand of unions and the workers they represent.

    Labor strategists in Canada must be working overtime now to figure out how to leverage this decision into expanded organizing opportunities.  These should be exciting conversations about how to reassert rights that have been more narrowly seen.  The opportunity for the Canadian labor movement to lead the labor revival in the world has just been handed to unions in the north on a platter.  Let’s see if they are ready to feast or stumble away from the table.
    

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