Unions wouldn’t have won new Charter rights without anti-labour governments
In a celebratory press conference following the Supreme Court ruling, SFL legal counsel Peter Barnacle suggested the labour movement might want to send a Valentine (or words to that effect) to former Ontario premier Mike Harris, former B.C. premier Gordon Campbell and current Saskatchewan premier Brad Wall.
It starts with the Supreme Court’s Labour Trilogy in 1987. The Charter of Rights and Freedoms was only five years old then, and the court was feeling its way. In three cases exploring what rights organized labour had under s.2(d) freedom of association, the court was very restrictive.
“After the trilogy came down, labours’ hopes for the charter were somewhat diminished and there was a period where not much happened in charter litigation involving labour,” says Barnacle. “It took governments acting more out of [ideology] than labour relations sense to bring the courts back in.”
Enter Mike Harris. After the Ontario PCs were elected in 1995, they repealed a law the Bob Rae-led NDP had passed giving agricultural workers labour standards protection. Aided by the United Food and Commercial Workers, some agricultural workers brought a charter challenge. In Dunmore v Ont (AG) (2001) the Supreme Court began backing away from the trilogy, ruling that workers had a constitutional right to organize.
In 2007, the SCC extended s.2(d) to include the right to collective bargaining. That came in a case launched by B.C. health care unions after the Gordon Campbell-led Liberals passed a law removing key collective agreement protections from existing union contracts to open the door to privatization.
“Then we get the Brad Wall government which decides to bring in the most draconian public service legislation in Canada and the courts once again are engaged and now find that the right to strike is important,” says Barnacle.
“In 1987 none of those things were covered, outside of the ability to join a union. Now, in 2015, the courts are in the reverse position.” /Gregory Beatty