Category Archives: Collective Bargaining

Right to Strike Upheld by the Supreme Court of Canada

Today, the Supreme Court of Canada issued a decision upholding employees’ right to strike as a meaningful part of the collective bargaining process guaranteed under the Canadian Charter of Rights and Freedoms.


In 2007, the Saskatchewan government passed legislation which limited the right to strike of public sector employees who performed “essential services”. The legislation provided for the government and the union representing its employees to enter into a negotiation as to the identity of the “essential service employees”. However, in the absence of agreement, the government was given the sole right to make the final determination without appeal.

The Court had already held that the freedom of association guaranteed under the Charter included the right to engage in meaningful collective bargaining. However, the Court has been careful not to mandate the process by which that collective bargaining had to take place.


As a result of this decision, we now know, that as a minimum, the right to collective bargaining must include “the ability to engage in the collective withdrawal of services”. The Court has held that this is a “necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.

This decision does not stand for the proposition that essential service employees have an unfettered right to strike. On the contrary, the Court recognizes that some employees may indeed perform services which are so essential that their ability to stop work must be curtailed.

What the Court found objectionable in this case was that the legislation did not define essential services to mean services that truly were essential; the category of workers deemed essential was subject to the government’s unilateral discretion; there was no impartial and effective dispute resolution process by which the unions could challenge the government’s designation of a essential service employee and there was no meaningful alternative mechanism for resolving bargaining impasses.

The effect of the decision has been suspended for a period of one year to allow the Saskatchewan government to amend its legislation.


In 1987, the Supreme Court of Canada held that the right to freedom of association guaranteed under the Charter did not include the right to collective bargaining. Twenty years later, in 2007, the Court reversed itself and held that the Charter did indeed protect the right of employees to “engage in a meaningful process of collective bargaining”.

In 2011, the Court held that “a meaningful process of collective bargaining” included a right to join together to pursue workplace goals, to make collective representations to the employer, to have the employer consider those representations in good faith and to have a right of recourse in the event that the employer did not bargain in good faith. Finally, in a decision earlier this month, the Court further expanded these requirements by finding that in order to engage in meaningful collective agreement, employees had to have the right to bargain independent of their employer and the right to use how to pursue their collective interests. This decision further expands the protection guaranteed to workers under the Charter.

The headnote concludes, “Clearly the arc bends increasingly towards workplace justice”.

We anxiously await the next step!


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Filed under Collective Bargaining

When a union’s representational rights and an employee’s privacy rights collide

The Supreme Court of Canada recently issued a decision confirming that there are limits on an employee’s right to privacy vis-à-vis his or her union.

In Bernard v. Canada (Attorney General), the Court held that a union was entitled to the home contact information of the employees it represented, and that individual employees did not have the right to opt-out of having their information shared with the union.

Elizabeth Bernard was a member of a bargaining unit in the federal public service, but was not a member of the union that represented her. Ms Bernard strongly objected to her employer providing the union with her home contact information. Ms Bernard challenged the union’s right to obtain that information all the way up to the Supreme Court of Canada.

The Supreme Court of Canada dismissed Ms Bernard’s appeal, and provided the following general commentary on the relationship between employers, employees and unions, and the impact of that relationship on employees’ privacy rights:

  • A union has the exclusive right to bargain on behalf of all employees in a given bargaining unit. While an employee is undoubtedly free not to join the union, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees.
  • The Court endorsed two basic rationales as to why it was an unfair labour practice for the employer to refuse to provide the union with employee home contact information.
    • A union needs an effective means of contacting employees in order to discharge its representational duties.
    • There is a special, tripartite relationship between the employee, the employer and the union, which means that the disclosure of the information to the union is not like disclosure of the information to the public.
  • Although section 2(d) of the Charter protects freedom from association as well as freedom of association, it does not provide protection from all forms of involuntary association. The compelled disclosure of an employee’s home contact information by an employer to a union is not a violation of that employee’s Charter rights.

There are some aspects of the Court’s analysis in Bernard that are very fact-specific. For example, the Court was interpreting specialized legislation that only applies to the federal public service (i.e. the Public Service Labour Relations Act and the Privacy Act). However, the Court did appear to endorse the decision of the Ontario Labour Relations Board in The Millcroft Inn Limited, the leading case on the issue in Ontario that also confirms the right of a union to obtain information from the employer about employees in the bargaining unit.

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Filed under Collective Bargaining, Duty of Fair Representation, Labour, Privacy

Open Season Coming Soon

Just a reminder that the industry-wide “open season” in the residential construction sector in the greater Toronto area is set to run from February 1 to April 30, 2013, in accordance with the Labour Relations Act. Every three years all of the residential construction sector collective agreements come up for negotiation at the same time and unions have a three month period to lock down their own bargaining rights and attempt to take them from others. During that time you can expect to see a significant amount of union organizing activity on job sites and inter-union rivalry as construction unions seek to protect and expand their bargaining rights.

The open season won’t just affect unionized companies or subcontractors. It also has the potential to affect non-unionized sub-trades, general contractors and builders. For example:

  • The conflicts associated with raids between unions have the potential to spill over and affect the day-to-day work being performed by workers who become engaged in the politics of the conflict with their friends and co-workers or worse, face strikes and work stoppages as the various factions side off against each other.
  • Because of the increased union activity, organizers become more familiar with who is doing what and may walk into an easy certification where a non-union builder has a couple of construction workers on site.
  • Increased organizing activity can mean more non-employees on the job site, which raises additional health and safety issues.
  • In cases of both legal and illegal strike activity, it is often the builder that ultimately has to take the steps necessary to obtain the assistance of the Ontario Labour Relations Board or the Court.

We can assist you both with taking precautions to prepare for the upcoming open season and in responding to a situation once it has arisen.


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Filed under Collective Bargaining, Labour