By Brandon Quinn, Lawyer, Hastings Labour Law Office LLP.

I have been asked to review two recent legal challenges to legislation in Manitoba and Alberta. The legislation that is the subject of those challenges each place some limits on the ability of public sector unions to negotiate in bargaining. As I understand it, there is a question about whether a similar challenge could be raised about either the bargaining mandates that govern bargaining with the Public Sector Employer’s Council (“PSEC”) here in BC, or about the “me-too” agreement that the Government and the BCGEU agree to every round of bargaining regarding wage and COLA increases.

Unfortunately, a challenge to either the PSEC mandates or the me-too agreement is unlikely to succeed. The challenges in Manitoba and Alberta were based on arguments that the government in those cases violated the freedom of association of union members found in section 2(d) of the Canadian Charter of Rights and Freedoms. However, courts in Canada (including the Supreme Court of Canada) have found that bargaining mandates like those in BC do not violate section 2(d) of the Charter. In fact, a BC court has ruled the PSEC mandate itself did not violate the Charter. The Manitoba and Alberta challenges do not alter this caselaw. In fact, the court in Manitoba follows it. While there does not appear to have ever been a challenge to a me-too agreement, such agreements are common place and also likely do not amount to a violation of section 2(d).

In order to explain why these challenges will likely fail, it is important to review the caselaw in some detail.

In general, the freedom of association protection in section 2(d) of the Charter prohibits the government from interfering with the right of Canadians to associate with others. While that right is rather broad, historically the Supreme Court of Canada has not interpreted it very broadly in the context of unionized collective bargaining.

Around 15 years ago, that began to change when the Supreme Court issued a series of decisions about the rights of unions and their members under section 2(d) of the Charter. One of those decisions was Health Services and Support – Facilities Subsector Bargaining Assn v. British Columbia (commonly called “Health Services”). In that case, which dealt with a piece of legislation that stripped certain rights from the collective agreements of the health sector trade unions in BC, the Court found that section 2(d) could be used to strike down laws that interfere with the ability of public sector unions and their members to collectively bargain. However, the Court made it clear that section 2(d) would only be violated where a law “substantially interferes” with the procedural right to bargain.

The Supreme Court has followed Health Services with a series of cases about the associational rights of employees to bargain collectively. One of those is Meredith v. Canada (Attorney General) (commonly called “Meredith”). Meredith, dealt with a challenge under section 2(d) of a wage roll back for RCMP officers. While these officers were not unionized, they did have a “pay council” that would recommend pay increases to their government employer. In 2008, the employer announced 3 years of pay increases that fell within the range proposed by the council. However, after the financial crisis hit later on in 2008, the government passed a law that rolled back those proposed increases and set limits on future compensation. The RCMP officers argued that the limits in this law were a “substantial interference” on their right to bargaining wages with their employer. The Court disagreed and found that the rollback did not violate section 2(d) because it was time limited, applicable to all public servants and did not permanently remove wages from bargaining.

While Meredith dealt with non-union employees, an identical argument was made by the Federal Government Dockyard Trades and Labour Council regarding its members affected by the same piece of legislation. In that case, commonly called the Dockyard Trades case, the BC Court of Appeal followed Meredith and found that the unionized employees at the dockyard did not have their freedom to associate infringed.

While both Meredith and Dockyard Trades dealt with a Federal law, a similar challenge has been made to PSEC’s bargaining mandate here in BC. That challenge was made by the BC Teachers’ Federation as part of its larger Charter challenge to a law that stripped class size mandates from their collective agreements. That challenge went all the way to the Supreme Court of Canada, where the BCTF eventually won. However, the BCTF raised several other Charter challenges at trial unrelated to the class size issue. One such challenge was that the government’s 2010 “Net Zero Mandate” to PSEC violated section 2(d). The trial judge found that the mandate to PSEC did impede the ability to bargain, but denied the challenge because it was not a “substantial interference” with bargaining like in Health Services. Neither the BCTF, nor the government, ever appealed that part of the decision, so it remains the law in BC.

All of this law suggests that the bargaining mandates given to PSEC for each round of bargaining do not violate section 2(d).

There does not appear to be a similar challenge made to a me-too agreement. The closest case might be an Ontario case called OPSEU v. Ontario (commonly called OPSEU). There, the Ontario government instituted a series of limits of bargaining with its public sector unions after the 2008 financial crisis. Eventually, the government came to a deal with one of the teachers’ unions, and then passed a law that had the effect of imposing agreements on unions that did not agree to the basic terms agreed with the one teachers’ union. Unsurprisingly, Ontario was found to have violated section 2(d) by, among other things, trying to force one union’s contract onto others.

While it could be argued that the me-too agreements represent a similar violation, Ontario’s behaviour in OPSEU is fundamentally different to the BC government here. In OPSEU, unions were prevented from basically negotiating any term in their agreements, and faced having terms imposed if they did not adopt the proposed agreements. Here, the me-too agreement simply allows BCGEU members to receive similar wage or COLA increases that other public sector unions negotiate. That might make bargaining more difficult for the other unions, but it is not a prohibition on attempting to negotiate higher wages. The me-too agreements, unlike in Ontario, also do not prevent BC unions from negotiating other terms beside wage and COLA increases. Accordingly, it is likely that a Court would view any limit caused by the me-too agreement to not amount to “substantial interference” with the right to bargain.

Nothing in the recent challenges in Manitoba and Alberta alters any of this current law. In Manitoba, the Manitoba Federation of Labour (“MFL”) and a number of local unions (including IBEW Locals 2034, 2085 and 435) challenged a piece of legislation called the Public Services Sustainability Act (“PSSA”) that was designed to create a framework for future wage and benefit increases for public sector employees (much like PSEC). As part of that framework, the PSSA prohibited any collective agreement wage increases for the first 2 years of the PSSA’s existence, and mandated very small increases for the two years following that.

The MFL and the other unions argued that these limits represented a “substantial interference” with their right to bargain and, according to Health Services, violated their members’ right to freedom of association. The Government, in turn, relied on Meredith and argued that this was not substantial interference.

The trial judge agreed with the unions and found that the wage mandate in the PSSA prevented meaningful collective bargaining on monetary issues and thus violated section 2(d) of the Charter. However, the Manitoba Court of Appeal overturned the trial decision and, relying on Meredith and Dockyard Trades, found that the PSSA’s limits of negotiating wage increases were not a substantial interference.

The Alberta challenge did not deal with a bargaining mandate or a me-too agreement. It dealt with a law that had the effect of delaying interest arbitration that had been bargained into a collective agreement. Specifically, the Alberta Union of Provincial Employees and the Alberta government had agreed to allow an interest arbitration for a wage rider during the last year of their collective agreement. However, prior to that arbitration taking place, the government passed a law that suspended all such arbitrations. There has yet to be a final decision about whether the Alberta law violated section 2(d) of the Charter, although such a decision would not necessarily affect the Meredith line of cases.

Overall, the law suggests that the PSEC bargaining mandates do not violate the freedom of association protection in the Charter. These mandates apply to all public sector unions, and they do not prohibit the parties from negotiating other matters. They are also amended every few years to reflect the government’s financial situation. Bargaining mandates like this, while possibly impeding bargaining, are not a “substantial interference” with the right to bargain.

The same is true for the me-too agreement. It may make bargaining some wage terms more difficult, but it is likely not substantially interfering with the right to bargain.

Of course, mandates and agreements change over time. It may be that a future mandate or agreement places some additional limitation that may amount to a “substantial interference,” but for now, there is a low likelihood that a Charter challenge would be successful.

Brandon Quinn has been a partner at Hastings Labour Law Office LLP since 2011. He has practiced labour and administrative law in British Columbia since joining the firm as an associate in 2003. In that time, he has appeared on behalf of trade unions before several federal and provincial administrative tribunals including labour boards, human rights tribunals, and employment standards tribunals. He also represents trade unions in all levels of British Columbia courts, including Small Claims Court, Supreme Court and the Court of Appeal.