This case is the defining case in the battle over union rights and collective bargaining. In 2002 the recently elected government of BC tore up the collective agreement between the province and healthcare workers under the guise of fiscal austerity.
By the time the case wound its way to the Supreme Court in 2007, the core elements of the right to collective bargaining and the binding nature of collective agreements were at stake. In a groundbreaking judgment the Supreme Court, for the first time, enshrined the right to collective bargaining as a Charter right encompassed by the right to “freedom of association.” In essence, the Campbell government inadvertently handed Canadian workers one of the most important victories in the history of labour law. While the Court has been somewhat cautious in how broadly its decision is interpreted there is no doubt that the decision seriously undermined the anti-union ambitions of several provincial governments.
On January 30 the Supreme Court of Canada issued a critical decision in a long running dispute between the government of Saskatchewan and the Saskatchewan Federation of Labour. In 2013 the government introduced Public Service Essential Services Act (the “PSESA”), which was a wide ranging Bill aimed at banning strikes in the public sector and undermining the leverage of unions in collective bargaining. The Act contained the unilateral right to declare any public service essential.
In its decision, the SCC upheld the right to strike as an integral component of the process of collective bargaining. It ruled that under Section One of the Charter, while public services are important and strikes disruptive, the effective ban on the right to strike could not be justified as “proportionate” and short circuited all other means of dispute resolution.
As in the BC Health Services case, an overreaching, Conservative minded government handed Canadian unions a decisive and historic victory; in this case the constitutional right to strike.
Members of the RCMP had long been banned from joining a union or striking under the Public Service Labour Relations Act. As such they were denied the right to collective bargaining. In Mounted Police Professional Association of Ontario et al. vs. Attorney General of Canada they challenged that prohibition and the case eventually ended up in the hands of the Supreme Court of Canada (SCC).
In this case the SCC ruled the ban on unionization unconstitutional, in line with the Court’s more expansive view of the right to collective bargaining. Indeed, the SCC struck down the ban on the basis that it violated the Charter right to freedom of association established in the aforementioned 2007 Health Services decision.
While the case may not initially seem relevant to the post-secondary education sector, several provinces have legislation curtailing collective bargain rights for education workers. Alberta, in particular, has particularly restrictive language in the Post-Secondary Education Act barring faculty and graduate students from unionizing. In light of the decision Alberta is in the process of revising the act to ensure it is in line with the SCC judgment.
In 2008 the UBCFA filed a grievance over changes to the teaching evaluations process at UBC. The new policy was passed by Senate and the FA ostensibly argued that the policy violated the Collective Agreement. In a surprising and precedent setting decision Arbitrator McPhillips ruled that he did not have jurisdiction to rule on the merits of the case because the polices of Senate take precedence over the provisions of a collective agreement.
Initial Arbitration Order
The UBCFA appealed the initial order to the BC Court of Appeal but McPhillips’ initial judgement was upheld.
BC Court of Appeal Decision