Freedom of Association at the Labour Board: Exploring the implications of the Supreme Court’s New Labour Trilogy and other recent Charter decisions

A seismic shift has taken place in Canadian labour law. The shift that began in 2007 with the Supreme Court of Canada’s recognition of constitutional protection for collective bargaining in BC Health Services has culminated in a “New Labour Trilogy” and recognition of constitutional protection for the right to strike. In this session leading labour lawyers will examine the issues that are likely to arise from the Supreme Court of Canada’s new trilogy and the British Columbia Court of Appeal’s decision in the BCTF case.

• Is the dissent in Saskatchewan Federation of Labour evidence of a significant ideological split at the Supreme Court? If so, is it a split that is likely to be accentuated by recent changes in the composition of the court?
• How are the results of recent elections across Canada likely to influence government, employer and union responses to the Supreme Court’s recent decisions on freedom of association?
• Are Charter challenges likely to become a significant union strategy for maintaining and expanding labour rights? Are government threats to use the notwithstanding clause to counteract court decisions supporting collective bargaining rights realistic?
• How will the Supreme Court of Canada’s reliance on international labour law affect the definition of “essential services” in Canadian labour law? Are economic reasons justification for limitations on collective bargaining and the right to strike or is government limited to justifications related to, health and personal safety?
• What are the likely prime targets for Charter challenges in the near future? Essential services designations? Statutory exclusion of terms and conditions of employment from bargaining or arbitration? Exclusion of certain occupational groups from statutory protections for collective bargaining rights?
• The Supreme Court has signaled that it is willing to accept binding arbitration as a substitute for the right to strike in essential services, but what conditions must arbitration meet in order to be a constitutionally acceptable substitution?
• Can ad-hoc back-to-work and stay-at-work legislation survive constitutional challenges?
• Will the “New Labour Trilogy” result in challenges to fundamental aspects of Canadian labour law such as the prohibition on midterm or recognition strikes?
• Does the Charter mandate protection for certain activities of employees acting in association but not under the auspices of a recognized union?
• Do employers have a legal obligation to bargain in good faith with minority unions?
• Are Charter violations of collective bargaining rights cured where there has been pre-legislative consultation, where the issues subject to bargaining are also matters of government policy and the Charter violation is temporary?