Constitutionalizing Collective
Bargaining
Lessons from Canada for the
United States
Recent evolution of labour’s right to
bargain in Canada
1980s Supreme Court labour trilogy: right to organize but
no protection for collective bargaining or strike. Rights
are individual.
• 2001 Supreme Court’s Dunmore Decision: right to
recognition but no mandatory bargaining or strike right
(collective rights recognized)
• 2007 SCC Health Services Decision: Trilogy reversed.
Good faith bargaining protected; still no strike right
• 2011 SCC Fraser: split court; minority wants HS
overturned; majority says: HS is “good law.” Still no
strike right but reliance on intl law suggests it is implied
Why the 2007 reversal?
• Canada strongly supports “labour rights as
human rights” and relevant intl law
– 1995 UN Summit on Social Development
– 1998 ILO Declaration of Fundamental Principles and
Rights at Work
– 2000 UN Global Compact
– 2006 Equator Principles
– 2004-2011 UN Norms and Ruggie Process
• All affirm human rights character of collective
bargaining
Impact on Cdn Law and Practice
• Biggest impact: Confusion. SCC relies on intl
law but little understanding of intl law in
Canadian legal and IR communities. Example:
– In Fraser 1 (2008) Ont Court overturns Dunmore and
imposes Wagner-Act Model on Ontario agriculture
– That remedy goes way beyond intl law and is also
inconsistent with intl law
– In Fraser 2 (2011) SCC majority overturns Fraser 1
Agricultural Employees Protection
Act
• Response to SCC order that Ontario protect Ag
workers constitutional rights (Dunmore 2001)
• Does not specify mandatory bargaining, strike
right and majoritarian exclusivity thus reviled by
unions
• OKed by SCC in Fraser 2.
• Its consistency with intl law is dependent on how
administered. Govt duty is to “promote”
collective bargaining
• At present On govt making no effort to promote
collective bargaining in agriculture.
Points of friction between SCC, intl
law and current Cdn practice
• SCC has declared its intent to rely on intl law as
prime interpretative aid.
• Its 3 key recent decisions are consistent with intl
law.
• Conclusion: default std for Cdn govts is
compliance with intl law
• But they are generally not complying. Eg no
promotion of cb in ont agriculture; back-to-work
legislation; no revision of wagner-act model.
Curious Position of Unions
• In 2005 NUPGE and UFCW launch
“labour rights are human rights initiative.”
• Central aim: promote compliance with intl
law
• But in 2008 these unions rally around
Fraser 1 and particularly “majoritarian
exclusivity” which clearly offends intl law
• No major labour organization is pushing
for full compliance with intl law.
Position of political parties and
human rights groups
• No political party has made full compliance
with intl freedom of assn law a key issue
• No human rights group has forcefully
argued for full compliance with intl
freedom of assn law
Some very tentative conclusions
• The SCC is attempting to move Canada
towards compliance with intl law
• But there is stiff resistance from not only
govts and employers but also trade unions
and indifference in the human rights
community
Questions for US
• Will intl developments influence future
court decisions?
• Even if they do, will the Court be able to
move the relevant stakeholders?
• Will US labour rally around intl stds and
figure out how best to make use of them?