Facade or Formation? Reflections on the As Yet Unfulfilled Role of International Law in Canada's New Labour Law Constitutionalism Kevin Banks Director Centre for Law in the Contemporary Workplace Faculty of Law Queen’s University June 13, 2011

Background: Health Services (2007) Constitutional objective: protects capacity of employees to act in common to reach shared goals related to workplace issues and terms of employment. Constitutional obligation: “the legislature must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith” (para 91).

Worker Rights as Human Rights Purpose of freedom of association: to promote realization of individual potential relations with others (Dunmore, 2001). Liberty, autonomy, dignity, and equality are enhanced by protecting capacity of workers to form workers to form self-governing organizations able to participate in setting terms and conditions of employment through collective bargaining. (Health Services, paras 82-85)

Fraser: reaffirms protection of capacity for meaningful influence through collective bargaining “...the right to associate to achieve workplace goals in a meaningful and substantive sense is protected by the guarantee of freedom of association.” (Fraser, para 32) “Not merely a paper right”, but “a right to a process that permits meaningful pursuit” of workplace goals (Fraser, 2011 para 83).

The Key Jurisprudential Challenge How to draw the line between aspects of worker collective action requiring constitutional protection and those that should be left to the politically sensitive task of labour policy making by the legislature.

The Task: Developing a Constitutional Human Rights-Based Framework Requirements: Derive particular rights from broad objectives supporting human dignity, autonomy and equality. Particular rights must be necessary incidents: no greater specificity than required for constitutional objectives.

Jurisprudence to Date: Undefined Contours... or Heading for a Dead End? Health Services: Applies substantial interference test by focusing on importance of subject matters to capacity of union to pursue collective goals, and whether process of good faith consultation and negotiation was preserved. Suggests that duty to consult and negotiate in good faith is fundamental precept of collective bargaining.

Jurisprudence to Date: Undefined Contours... or Heading for a Dead End? Fraser: decision driven by concern about constitutionalizing Wagner model. Reads AEPA as imposing a duty to consider employee representations in good faith and concludes that Charter violation claim is premature. Suggests in places that duty to bargain is both directly required by section 2(d) and sufficient protection.

Jurisprudence to Date: Undefined Contours... or Heading for a Dead End? Jurisprudence either provides very little guidance... Or creates significant intrusion into legislative autonomy for little beneficial effect: Constitutionalizes an unnecessary aspect of Wagner model. Duty to bargain not intended to and cannot ensure capacity to exert meaningful influence. Value of duty to constitutional purposes depends entirely on access to other more basic rights. Given this, why venture into positive constitutional requirements?

Three options for defining the right to bargain collectively 1.Purposive, fact specific jurisprudence 2.Draw on Canadian legal models 3.Turn to international jurisprudence

Problems with Drawing on the Canadian Legal Model The elements of the Wagner model are inter-dependent. Elements of LRA's not clearly organized around human rights principles – inextricably entwined with rules and systems designed to secure industrial peace through a particular set of compromises. Attempts to extract general rights or principles likely to yield fragments of the current model, like the duty to bargain.

Canada's International Obligations as the Required Human Rights Framework “Canada's Charter of rights should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” (Health Services, para 70) “... the guarantee [of freedom of association] must be interpreted generously and purposively, in accordance with Canadian values and Canada's international commitments” (Fraser, para 32) In Health Services and Fraser international law has no influence on the specific content of the right to bargain collectively. Formative role of international law as yet unfulfilled.

Canada's International Obligations as the Required Human Rights Framework Canada's International Obligations: Convention 87 and ILO Constitution protect three inter-dependent rights of association: right to organize, right to bargain; and a qualified right to strike. Convention 87: state not to interfere, and to give effect to requirement that the law of the land not impair exercise of right. ILO Constitution: state to promote and realize principles concerning freedom of association and effective recognition of right to bargain collectively: at a minimum, eliminate practices that would clearly undermine principles.

Canada's International Obligations as the Required Human Rights Framework Jurisprudential advantages: Obligations fit within scope of obligations imposed by the Charter (section 32 and Dunmore). Based on human rights purposes and objectives common to those of protection of right to bargain collectively under the Canadian Charter. Sufficient to those objectives. A coherent system of general rights, built by tri-partite expert bodies, and consistent with a wide range of labour relations models and policies.

Canada's International Obligations as the Required Human Rights Framework Pragmatic disadvantages: Some significant conflicts between ILO law and Canadian law and practice to be dealt with by the judiciary: exclusions public sector labour relations limits on timing of strikes. Unfamiliarity of ILO law to Canadian judges and adjudicators.

Canada's International Obligations as the Required Human Rights Framework Conflicts can be managed with existing constitutional structures and doctrines: Substantial interference test can screen out infringements that do not go to purposes of rights. Charter section 1 reasonable limits (pressing and substantial purpose; rational connection; minimal impairment; proportionality of benefits and deleterious effects): Purposes likely to be recognized, though some exclusions questionable. Jurisprudence provides deference to policy judgment with respect to need for impairment of rights.

Canada's International Obligations as the Required Human Rights Framework Net effect may simply be: Eliminating complete exclusions that serve no compelling purpose. Requiring greater efforts by governments to negotiate wage freezes or mid- term changes to collective agreements in order to meet minimal impairment requirements. Healthy debate about relative value of freedom of association and expression of workers versus public interest in industrial peace... with likely outcome that contours of current Wagner model restrictions left substantially unchanged.

Concluding observations Unfamiliarity of international law can and should be overcome. Will it be? Why hasn't it been? Answers may lie in: attempt to turn first to Canadian legal principles for the core of the right to bargain collectively, combined with attempt to deal with right to bargain collectively separately from right to strike; and possibly the unpreparedness of Supreme Court to acknowledge the role of a qualified right to strike in making collective bargaining a meaningful process.