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 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 – 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?