A Legal Response to Neoliberalism? Organized Labour and the Charter of Rights and Freedoms

A number of recent favourable Canadian Supreme Court (SCC) decisions regarding labour rights have marked a turning point in the relationship between the courts and organized labour. In U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083 [hereinafter U.F.C.W. v. KMart cited to S.C.R.] the court ruled that a union’s right to leaflet outside a workplace was a protected form of Freedom of Expression. In Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94 [hereinafter Dunmore v. Ontario cited to S.C.R] the court ruled that agricultural workers had a constitutionally protected right to organize under section 2(d) of the Charter. In R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70 [hereinafter R. v. Advance Cutting & Coring Ltd. cited to S.C.R.] the court ruled that Quebec’s mandatory unionization laws in the construction industry did not violate the Freedom of Association. Finally, in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8 [hereinafter R.W.D.S.U. v. Pepsi-Cola cited to S.C.R.], the court reversed its earlier jurisprudence and ruled that secondary picketing warrants protection under section 2(b) of the Charter.
In “‘Labour Is Not a Commodity’: The Supreme Court of Canada and the Freedom of Association”, Judy Fudge tries to make sense of the court’s apparent about face on labour rights by charting the shift in the SCC’s interpretation of the Charter’s guarantee of freedom of association.[1] Fudge convincingly locates this shift in jurisprudence within the broader context of neoliberal restructuring, arguing that there has been a “shift in the site of legitimation for labour rights from the legislature to the courts”. [2] However, the article’s focus on the Supreme Court overlooks an equally compelling argument about organized labour’s shift in attitude toward Charter litigation.

In the 1980s, the labour movement enjoyed record high levels of union density[3] and strong ties to the New Democratic Party, which, by the late 1980s, was seen as a party on the move, poised for a major electoral breakthrough. In fact, the federal NDP topped federal public opinion polls for a time in 1987.[4] Today, organized labour approaches Canadian politics from a position of relative weakness. Union density rates in Canada stand at thirty-year low. The NDP’s political clout declined dramatically throughout the 1990s and the labour movement’s relationship with the party is at its weakest point in history. Governments, with few exceptions, at all levels and of all political stripes led an unprecedented attack on trade union freedoms in the 1990s, gutting labour laws, making it more difficult to organize unions, easier to decertify bargaining units, and nearly impossible for newly organized workers to achieve a fist contract when faced with a rabidly anti-union employer. Over the last few decades, unions have moved from crisis to crisis, unsure about how to confront capital within a highly regulated system of labour relations. This unprecedented post-war political weakness has convinced unions to shift strategies. As a result, organized labour has, by and large, abandoned its longstanding distrust of the judiciary and has begun to rely more heavily on the courts to protect the collective rights of workers. To be sure, unions have never been reluctant to defend their interests in court. However, this traditional reactive strategy has been complemented in recent years by a proactive strategy, wherein courts act as an alternative to the political arena as a venue for progressive social change. In order to illustrate the point, a review of some of the most recent and significant labour cases is in order.

Dunmore v. Ontario
In June 1995, Mike Harris and his Common Sense Revolution swept aside Bob Rae’s New Democrats and formed a strong majority government in Ontario. One of the Harris government’s first orders of business was to repeal most of the NDP’s progressive labour legislation; including amending the province’s labour laws to prohibit farm workers from organizing into unions.

The UFCW, which represented a group of agricultural workers in Leamington Ontario, challenged the province’s new Labour Relations Act on the basis that the law infringed on the rights of their members under s. 2 (d) and s. 15 (1) (equality rights) of the Charter. Dunmore was one of the workers represented by the UFCW. In Dunmore v. Ontario, the court was asked to rule on whether or not the Ontario government’s exclusion of agricultural workers from the province’s collective bargaining regime was consistent with the Charter’s guarantee of freedom of association. The union argued that farm workers were unfairly excluded from the province’s labour relations regime and that the Charter’s guarantee of Freedom of Association should give agricultural workers the right to bargain collectively and strike. However, the Ontario government maintained that extending such rights to agricultural workers would jeopardize the family farm.

In finding for the union, Bastarache J., writing on behalf of the court majority argued that the legislation unduly restricted the “wider ambit of union purposes and activity.”[5] Agricultural workers, according to the court, represent a vulnerable section of the workforce, and that their exclusion from the province’s labour relations system violated section 2(d) of the Charter. In coming to this conclusion, the majority argued that it was the vulnerability of agricultural workers in the labour market that determined their rights in the Charter. Although the court was only willing to extend s. 2(d) to the organizational aspect of union activity rather than the full ambit of labour relations rights, which would include the collective right to bargain and strike, the court did provide agricultural workers with a base from which to build.

R. v. Advance Cutting & Coring Ltd.
Whereas Dunmore v. Ontario dealt with the Freedom to Associate, R. v. Advance Cutting & Coring Ltd. focused on the right of workers not to associate. Essentially, the court was asked to rule on the constitutionality of legislative rules requiring mandatory unionization in Quebec’s construction industry.

The labour relations regime currently governing the construction industry in Quebec provides for provincial bargaining between recognized union groups (recognized by the law) and a unified employer association. The uniqueness of this regime, according to the court, has two striking features: 1) the centralized character of the collective bargaining system and 2) the separation of the negotiation of the working conditions from their implementation. While the union groups and employer associations negotiate the collective agreements, the enforcement of these labour standards is not achieved through a grievance procedure controlled by unions. Instead, enforcement is mainly the responsibility of the Commission de la Construction, which is a public body created under the Construction Act. The Commission oversees the implementation of the decree and enforces it, if need be, through civil and penal remedies.[6] As defined by legislation, the established union representatives (there are five in Quebec) are responsible for representing all construction workers. The Commission draws up a list of construction workers qualified to take part in a mandatory vote under s. 32 of the Act, during which each worker must opt for one of the five union groups as his or her bargaining agent.[7] According to the court, this legislation clearly forms an obligation to join a union group, as well as an obligation on the part of unions to accept workers wishing to affiliate with them.[8]
At issue in R. v. Advance Cutting & Coring Ltd. was whether or not there was a negative right not to associate under s. 2(d) of the Charter. Historically, the Supreme Court of Canada has maintained the position that labour issues are best left to the legislatures. However, in R. v. Advance Cutting & Coring Ltd., Lebel J., writing for a split court, argued that there was a possibility for an evolution in the relationship between the Charter and labour law. In this particular case, the court acknowledged that the construction industry in Quebec was heavily regulated by the state in an effort to retain the best interests of both organized labour and the industry itself. To change that balance, the court argued, would undermine the ability for organized labour to act as a respective bargaining agent in the industry. As Lebel J. argued:
a successful challenge to the form of union security scheme involved in this case might weaken the unions' ability to maintain their membership and preserve their financial base. In the long run, it could affect the balance of power within the economy or the political arena, because of its impact on the ability of unions to use effectively the mechanism of collective agreements and to participate in a meaningful way in the debates on the direction of Canadian society.[9]

Justices Bastarache, McLachlin, Major, and Binnie expressed the minority view that there is a right not to associate in the Charter and that compulsory union membership does indeed violate that right. The minority’s view was partially based on the assumption that mandatory unionization led to ideological conformity, a view the majority rejected. Despite the labour movement’s success in building on the freedom to associate, organized labour’s most significant advances in the judicial arena have been based on appeals concerning freedom of expression.

U.F.C.W. v. KMart
During a strike at two K-Mart stores in British Columbia, members of the UFCW distributed information leaflets to customers shopping at non-unionized locations in the surrounding area. The leaflets expressed the union’s view that K-Mart was engaging in unfair labour practices and encouraged potential customers to shop elsewhere. K-Mart argued that the UFCW’s leafleting activity constituted secondary picketing and the British Columbia Labour Relations Board agreed. The Board’s ruling effectively rendered the union’s action illegal, but the UFCW maintained that the freedom of expression of its members was protected under the Charter, and that as a labour organization, the union had the right to publicly protest K-Mart’s unfair labour practices.

In a unanimous decision, the Supreme Court ruled that the definition of picketing outlined in the province’s labour code was too expansive and therefore infringed on the union’s right to free expression. Therefore, the court upheld the union’s right to distribute leaflets at secondary locations.

Interestingly, the court’s decision distinguished between picketing (which could be viewed as coercive) and leafleting (which the court viewed as a form of social protest). In distinguishing between picketing and other forms of expression, the court was able to lump retail workers into the same category as other vulnerable groups in society who rely on social protest in order to get their message across.[10] The court reasoned that because social protest is a fundamental right enjoyed by all Canadians, union members could not be exempted.

R.W.D.S.U. v. Pepsi-Cola
In R.W.D.S.U. v. Pepsi-Cola, the court was asked to rule on the legality of secondary picketing. The case arose when Pepsi locked out members of the RWDSU in Saskatoon and brought in replacement workers in an effort to win the upper hand at the bargaining table. The employer’s bold maneuver led the union to engage in several acts of secondary picketing. Specifically, the RWDSU picketed retail outlets that did business with Pepsi, dissuaded retail staff from accepting deliveries, and picketed outside the homes of management.

Pepsi argued before the court that this form of secondary picketing was illegal per se at common law. The union countered this argument, claiming that secondary picketing is a fundamental right under s. 2(b) of the Charter, and is legal. Previously, in Dolphin Delivery, another case involving the legality of secondary picketing, the court ruled that it had no jurisdiction over private legal disputes between business and labour. However, in R.W.D.S.U. v. Pepsi-Cola, the court reversed itself by arguing that although the case involved two private actors in which no state action was directly involved, "…it must be recognized that the common law addresses a myriad of very diverse relationships and seeks to protect a host of legitimate interests not engaged by the Charter. Salient among these are the life of the economy and individual economic interests. Common law rules ensure the protection of property interests and contractual relationships. Nonetheless, where these laws implicate Charter values, these values may be considered."[11]

Essentially, the court reasoned that secondary picketing encompasses a wide variety of conduct, much of which is neither coercive nor harmful. Furthermore, the court ruled that restrictions on secondary picketing in the common law were out of step with the vales entrenched in the Charter. Supreme Court Justices reasoned that existing torts, such as those that encompass trespass and intimidation, would protect the interests of employers while ensuring the adequate flexibility to preserve the core principles of the collective bargaining regime. In making this argument, the court moved further on the issue of union speech than in U.F.C.W. v. KMart.
The essential elements of union power, as was outlined by the justices in the Labour Trilogy, and emphasized by McIntyre J. in the Alberta Reference, has been replaced with a description of labour picketing which fits adequately into the pluralist models of ‘group’ activity. Clearly, this indicates that the court sees little evidence to support the claim that labour picketing in this time period will threaten the relationship between labour and capital -- something that was reaffirmed in the freedom of association cases in R. v. Advance Cutting & Coring Ltd. In other words, the court no longer views labour and capital as two “equally powerful socio-economic forces.”[12] Rather, the court now perceives workers, to varying degrees, as a disadvantaged and vulnerable group worthy of Charter protection. And it is precisely for this shifting view that has fueled a rapprochement between unions and the Supreme Court in recent years.

Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia
CLC President Ken Georgetti called the recent round of Supreme Court decisions “historic victories for working people and their unions.”[13] However, the labour movement’s most significant Charter victory was yet to come. In Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, the SCC struck down several sections of British Columbia’s Health and Social Services Delivery Improvement Act, which radically altered labour relations in the province’s healthcare system by allowing employers to reorganize work without meaningful negotiations with healthcare unions or strict adherence to signed collective agreements.[14] In fact, the law invalidated some provisions of existing agreements and precluded bargaining on several aspects of the employment relationship. The ruling, which came down in June 2007, shocked the labour movement and political observers by overturning earlier jurisprudence in the “Labour Trilogy” which held that collective bargaining was not protected by the Charter’s guarantee of freedom of association. Relying on a combination of labour history, International conventions, and expanded Charter values, the SCC effectively read collective bargaining rights into the Constitution.

The judgment is surprising for several reasons. First, the framers of the Constitution clearly did not intend for the Charter to include an expressed right to collective bargaining. In fact, as was stated earlier, they explicitly voted against an amendment to that effect. Second, although recent pro-labour Charter decisions had allowed for an extremely limited expansion of Section 2(d) and 2(b) to include important rights for workers -- particularly in Dunmore v. Ontario and R.W.D.S.U. v. Pepsi-Cola, they had done little overall to reverse the impact or reasoning of the “Labour Trilogy” decisions. Thirdly, immediately upon hearing about the ruling, labour leaders conceded that the judicial victory in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia was unforeseen and unexpected, given the existing jurisprudence and the Court’s tendency to defer to legislatures on issues on labour relations.
The SCC decision to extend constitutional protection to collective bargaining is undoubtedly an important judicial victory for the labour movement. However, one should not exaggerate the political impact of the decision. Far from revolutionary, the SCC’s decision simply shields public sector unions from the worst excesses of neoliberalism by confirming the public policy environment of the post-war compromise. The fact that organized labour must rely on the courts, rather than the legislatures, to protect the last vestiges of the post-war compromise is, in fact, a sad commentary on the political clout of unions in an era of neoliberalism.

Explaining the Rapprochement
Over the course of the last decade, unions have increasingly come to embrace what Michael Mandel refers to as “legalized politics.”[15] Rather than wrestle with anti-union politicians and employers in the political arena, unions have, to some degree, retreated to the courts as an alternative strategy. Labour’s strategic shift towards actively pursuing litigation has occurred primarily because of events outside of the courtroom. The labour movement’s declining relationship with the NDP, its uncertain political direction, and its lack of creative capacity, have all contributed to labour’s new reliance on the judiciary. As such, recent Charter victories do not showcase organized labour’s strength. In fact, in many ways, recent Supreme Court decisions have highlighted the labour movement’s weakness in an era of neoliberal economic restructuring.


[1] Judy Fudge, “‘Labour is not a Commodity’: The Supreme Court of Canada and the Freedom of Association,” (2004), Saskatchewan Law Review no. 67, 445.
[2] Id., at 451.
[3] Jon Peirce, Canadian Industrial Relations (Scarborough: Prentice-Hall Canada Inc., 2000) at 148. In 1984, union density in Canada was 37.2% of the non-agricultural paid workforce.
[4] On 13 May 1987, the New Democratic Party polled 37 per cent, compared to the Liberals' 36% and the Conservatives' 25%. NDP leader Ed Broadbent had the approval of 57% of Canadians in that same month. By July 1987, NDP support reached 41% (35% Liberal and 23% Conservative). CBC Archives- NDP Tops the Polls, online: <http://archives.cbc.ca/IDC-1-73-1580-10676/politics_economy/ed_broadbent/clip8>
[5] Dunmore v. Ontario at 12
[6] R. v. Advance Cutting & Coring Ltd. at 136
[7] Id., at 139
[8] Id., at 155
[9] Id., at 165
[10] Specifically, the court compared the vulnerability of retail workers to the vulnerability of new Canadians.
[11] R.W.D.S.U. v. Pepsi-Cola at 21
[12] Alberta Reference at 414.
[13] Canadian Labour Congress FAXPRESS 25 January 2002.
[14] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] SCC 27.
[15] Michael Mandel, supra note 12, Chapter 1.