A Federal Court of Canada judge has ruled that the federal government breached the freedom of association of employees under s.2(d) of the Canadian Charter of Rights and Freedoms when it unilaterally rolled back RCMP wage increases without engaging in a long-established consultation process involving a Pay Council which included representatives of RCMP officers. Following the Supreme Court of Canada's decision in B.C. Health Services, as explained in its more recent ruling in Fraser, the judge held that the government's unilateral action violated the right of employees under the Charter to make collective representations to their employer and to have those representations considered in good faith. On July 21, 2011, the federal government appealed the ruling in this case to the Federal Court of Appeal. An opposite conclusion was reached by a B.C. judge in Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), [2011] B.C.J. No. 1697 (QL). The Council which represents the dockyard workers is also appealing the ruling in that case.
Turning first to whether the Treasury Board decision and the ERA violated s.2(d) of the Charter, Justice Heneghan acknowledged that the Pay Council's work could not be considered wholly equivalent to collective bargaining. However, noting that this was the only means through which members of the RCMP could collectively pursue goals relating to remuneration with their employer, she held that the process was protected by the Charter. She reasoned: "In Fraser, the Supreme Court of Canada held that all employees, not just those under a Wagner style collective bargaining regime, have the right to make collective representations and have those representations considered in good faith…. It follows that the Pay Council process is important and should be afforded the protection of subsection 2(d) of the Charter."
Heneghan found that the evidence clearly established that the Treasury Board was not willing to discuss the decision, in violation of its good faith obligation. In her view, apart from a slight increase to service pay (from 1 percent to 1.5 percentfor each five years' service), "the Treasury Board withdrew the issue from consideration and refused to negotiate on a good faith basis."
Heneghan further determined that this violation could not be saved by s.1 of the Charter. Although both parties conceded that reducing upward pressure on wages and reducing job losses in the face of a global recession were pressing and substantial objectives, a rational connection between the federal government's stated purpose of reducing pressure on the private sector to increase wages and the reduction of wage increases for RCMP members had not been established. The only study presented by the government concluded that "wages of police officers do not put pressure on the private sector to increase employee remuneration."
Moreover, in the judge's view, the impairment of the members' s.2(d) rights was not minimal, given the impact on their associational activities. Observing that the Treasury Board had met and achieved consensus with at least 17 other bargaining agents in the core public administration, as well as other agencies and Crown corporations, before enacting the ERA, Heneghan remarked: "If other bargaining agents were informed and given the opportunity to consult, to the point of signing agreements, it is clear that unilateral action and complete disregard of the Pay Council process was not minimally impairing."
In the result, Justice Heneghan allowed the application for judicial review and quashed the Treasury Board's decision to roll back RCMP wages because it breached s.2(d) of the Charter.
If this decision is upheld, it means that, following affirmation in Fraser of the Supreme Court's decision in B.C. Health Services, while the courts will not require legislatures to enhance workers' rights based on the traditional North American statutory (Wagner Act) model, they may well intervene if governments actively move to curtail workers' collective bargaining rights.
However, on July 21, the federal government appealed Justice Heneghan's ruling to the Federal Court of Appeal. And on September 8, a decision to the contrary, holding that the ERA’s nullification of a wage increase under a binding arbitration award did not breach the s.2(d) Charter rights of the plaintiffs, was issued by a judge of the British Columbia Supreme Court. See Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), [2011] B.C.J. No. 1697 (QL). This ruling will be reviewed in an upcoming Lancaster eNewsletter.
Comment:
The Supreme Court of Canada's decision in Fraser, although it purported to clarify B.C. Health Services, has left many questions unanswered. As a result, with respect to the issue of whether the federal government's Expenditure Restraint Act, imposing wage increase limits for the years 2006-2011, violates the freedom to collectively bargain, the decisions of lower courts are divided: the decision of the Federal Court judge in Meredith, reviewed in this issue, goes one way, while the decision of a judge of the British Columbia Supreme Court in Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), [2011] B.C.J. No. 1697 (QL), goes the other way. The decision in Meredith has been joined by the ruling of an Ontario Superior Court judge in Association of Justice Counsel v. Attorney General of Canada, [2011] O.J. No. 4873 (QL), November 1, 2011. On July 21, 2011, the federal government appealed the ruling in this case to the Federal Court of Appeal. An opposite conclusion was reached by a B.C. judge in Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), [2011] B.C.J. No. 1697 (QL). The Council which represents the dockyard workers is also appealing the ruling in that case.
Meredith v. Canada (Attorney General)
Federal Court of Canada
Justice Elizabeth Heneghan
June 21, 2011
[2011] F.C.J. No. 948 (QL)
Read the full text of the Federal Court of Canada's decision in Meredith v. Canada (Attorney General)
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Federal government rollback of RCMP wage increases breached Charter right of Mounties to freedom of association, judge rules