Lecture by Professor Dominic Roux
"Constitutional Freedom of Association and changes in labour legislations ordered by Courts in Canada: the "Promised Land"?
Date: Tuesday, 3 April 2012
Time: 1.10pm - 2pm
Venue: MSB.0.01, Waikato Management School, University of Waikato
"Freedom of association", which is guaranteed by the Canadian Charter of Rights and Freedoms, is a topic that has generated much debate among lawyers in Canada, especially since 2007. Indeed, the Supreme Court of Canada has given a liberal interpretation to this constitutional right and, when doing so, was strongly influenced by international labor law.
Indeed, in Dunmore (2001), the Court has concluded that for agricultural workers, "Freedom of association" includes freedom to assemble, to participate in the lawful activities of the association and to make representations, and also the right to be free from interference, coercion and discrimination in the exercise of these freedoms. In Health Services (2007), the Court has decided that freedom of association protects "the right of [every] employees to associate for the purpose of advancing workplace goals through a process of collective bargaining". Later, in Fraser (2011), the Court confirmed that the protection of collective bargaining is a precondition to the meaningful exercise of the constitutional guarantee of freedom of association in the workplace context. This requires a good faith process of consideration by the employer of employee representations and of discussion with their representatives. Therefore, farm workers in Ontario must be entitled to meaningful processes by which they can pursue workplace goals.
This lecture will shed light on this recent "judicial" constitutionalization of labour rights and collective bargaining in Canada. First, I will outline the main principles of labor law and industrial relations systems in this country, especially in the province of Quebec. I will also draw up a brief review of unionism and the workforce in Canada. Second, I will present the evolution of the relevant case-law since 1987, to show its immediate impacts on specific labour legislations and collective bargaining in Canada. Finally, I will talk about some of the fears and hopes created by this recent phenomenon concerning the future of labour law and its potential for unions in Canada.