The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50809
LEGAL REPORT/LABOUR & EMPLOYMENT Debating labour rights The Supreme Court's I decision sparks debate on the future of collective bargaining rights in Canada. BY ANDI BALLA t has been a summer of discon- tent in labour relations. High- profile, nationwide strikes and lockouts like those at Canada Post and Air Canada have hit the headlines, igniting a fiery public debate about unions and collective bargaining rights, as well as public and political support for organized labour. But as the general public and parliamentar- ians argued about what is and is not a fair deal and whether the government's back-to-work legislation for Canada Post was the right thing to do, there has been a quieter, more academic debate going on among some of this country's labour lawyers and legal scholars. The questions experts are trying to answer are: Is collective bargaining a constitutional right? Is it a human right? Does the government have to guarantee and promote the rights of workers to associate in a union? What's the best model for bargaining between employers and employees? Whatever models and processes workers might have at their disposal for representation, the right to strike is at the core of the discussion. "At the end of the day, without the right to strike, they are meaningless," says Steven Barrett, a labour and constitutional lawyer and managing partner at Sack Goldblatt Mitchell LLP. "It's not just my view, it seems to be a common view." But this latest round of debate over labour rights did not arise from these recent labour disputes, in which unions already possess collective bargaining and striking rights, but from other seg- ments of workers who operate under laws that have denied them certain rights. Ontario farm workers make up one such group. After the country's most populous province passed a law that refused farm workers many of the collective bargaining rights associated with unions — the most important of which relates to striking — farm work- ers and sympathetic labour groups took 50 A U GUST 2011 www. CANADIAN Lawyermag.com the matter to court, arguing the Ontario law violated the right to freedom of association, s. 2(d) of the Charter of Rights and Freedoms. The Supreme Court of Canada dis- agreed, and recently upheld the Ontario law. In Ontario (Attorney General) v. Fraser, the SCC ruled Ontario's Agricultural Employees Protection Act did not violate Charter rights because JUAN CARLOS SOLON F r aser