Teacher (etc) Wage Freeze Legislation(s)
Make things simple - use the notwithstanding clause to put a 5yr hold on litigation, appeals and Supreme Court hearings
The Ontario (shouldn't they be classified as professional contractors rather than "workers") Teachers (soon to be followed down this "clawback" or freezr path, by all Civil Service Unions, as wage/benefit "parity w the private-secvtion PART 2 hits every sector, order and type of government "worker") believe they have the "constitutional" right (rooted in freedom of association) to collectively bargain based on an imperfectly decided "Health Services and Support...Assn vs British Columbia, 2007 SCC 27"
The imperfections of the Health Services decision were cited in Ontario (Attorney General) v. Fraser, 2011 SCC 20 in red below
Let's save a lot of time and money by "expressly declaring" that the Ont Teacher Freeze Wages etc legislation operates "notwithstanding" all the (taxpayer paid) union-dues-fed legal wrangling and court costs.
Let's face it, across the country, the Unionized-Gov't-Monopoly-
rce
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Marginal note:Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
Marginal note:Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
Marginal note:Re-enactment
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
Marginal note:Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
FROM
Per Charron and Rothstein JJ.: Section 2(d) protects the liberty of individuals to associate and engage in associational activities. It protects the freedom of workers to come together, to form a bargaining position and to present a common and united front to their employers. It does not protect a right to collective bargaining nor does it impose duties on others, such as the duty to bargain in good faith on employers. To the extent that Health Services constitutionalized collective bargaining, it was not correctly decided. It should be overturned thus disposing of the constitutional challenge in this case.This Court may overrule its own precedents, but it should only do so where there are compelling reasons. The question in every case involves a balancing: Do the reasons in favour of following a precedent ― such as certainty, consistency, predictability and institutional legitimacy ― outweigh the need to overturn a precedent that is sufficiently wrong? In this case, compelling reasons exist for overturning Health Services: the error in Health Services concerns a question of constitutional law and is not susceptible to being corrected in a lasting way by the legislative branch; Health Services strayed significantly from other sound precedents, including Dunmore, with respect to the purpose of Charter protection for freedom of association; the constitutionalization of collective bargaining, as envisaged in Health Services, is not workable without other elements of modern labour legislation in place; and there has been intense academic criticism of Health Services.Health Services was an express break with prior decisions of this Court on s. 2(d), including Dunmore. This break came when the majority of the Court found that s. 2(d) required that government legislate to facilitate collective goals which an association was formed to pursue, rather than protecting the freedom of association itself. In Dunmore, the requirement that government provide legislation to protect workers was anchored in the proposition that certain workers could not associate without government intervention. The majority in Health Services focussed on the goals of an association and the enhancement of those goals, rather than the ability of the claimants to associate (which they already had done). An application of the actual holding in Dunmore would have asked only if the government substantially interfered with the ability to associate.Health Services erred in concluding that s. 2(d) protects collective bargaining and obliges parties to bargain in good faith for five reasons. First, Health Services departed from sound principles established in this Court’s precedents on the nature and scope of s. 2(d). The purpose of s. 2(d) is to protect individuals rather than groups per se. Health Services reinterpreted an individual freedom as giving rise to collective rights with no individual rights foundation. This reinterpretation of the scope of s. 2(d) was a departure from previous jurisprudence that is not justified by the purpose of the Charter guarantee.Second, s. 2(d) protects freedoms not rights. According to Health Services, if s. 2(d) protected only the ability of workers to make collective representations and did not impose a duty on the employer to bargain in good faith, it would fail to protect the right to collective bargaining. This proposition transformed s. 2(d) from a freedom into a positive right by imposing an obligation to act on third parties (i.e. the employer). A right to collective bargaining is also not derivative of a freedom ― it is a standalone right created by the Court, not by the Charter. A derivative right is one that is necessary to allow individuals to exercise a fundamental freedom. No individual employee has a right to require an employer to meet and make a reasonable effort to arrive at an acceptable employment contract. To grant a right to collective bargaining under s. 2(d) purportedly as derivative of the freedom of association is not consistent with the approach taken by this Court in its derivative rights jurisprudence in relation to the Charter.Third, s. 2(d) does not empower the Court to privilege certain associations over others. The Court’s earlier cases did exhibit a content‑neutral approach to freedom of association in the sense that they did not claim to privilege particular associations. Health Services erred in saying that these approaches were not purposive. Health Services suggested that a “generic” approach to defining freedom of association is inappropriate because different groups must have different freedoms. However, the context that is relevant to a purposive interpretation of Charter freedoms is not the context of the individuals who happen to be exercising that freedom in a given case. Rather, a purposive interpretation of s. 2(d) requires that one place freedom of association in its linguistic, philosophic and historical contexts. The origins of the concept, the words used to describe it, and the philosophical principles on which it relies will define the scope of s. 2(d) protection. The extent of that protection should not change depending on who is exercising their s. 2(d) rights. The protection of fundamental freedoms should not involve the Court adjudicating the relative values of the way in which individuals exercise those freedoms. Just as this Court has not adjudicated the relative value of a religion or its tenets under s. 2(a) or assessed the relative value or content of a given exercise of freedom of expression under s. 2(b), so too should this Court not privilege some associations over others under s. 2(d).Fourth, s. 2(d) does not afford constitutional protection to contracts. Although Health Services purported to constitutionalize the process of collective bargaining rather than its fruits, it in fact granted constitutional protection to the collective agreements on the basis that they were the fruits of that process.Fifth, s. 2(d) should be interpreted in such a way as to afford deference to the legislative branch in the field of labour relations. Health Services erred in removing decision‑making power on this question from Parliament and the provincial legislatures. While the courts are responsible for safeguarding the ability of individuals to do collectively that which they have the right to do as individuals, the judiciary is ill‑equipped to engage in fine adjustments to the balance of power between labour and management in the labour relations context.Moreover, the reasons advanced in Health Services for extending protection to collective bargaining under s. 2(d) ― Canadian labour history, Canada’s international obligations, and Charter values ― do not support conferring a constitutional right to collective bargaining and imposing a duty on employers to engage in collective bargaining.The argument that a right to collective bargaining which includes a duty on employers to bargain in good faith is a pre‑statutory feature of Canadian labour law, made in Health Services, contradicts established accounts of the history of labour relations in Canada and has recently been the subject of intense academic criticism. While the duty to bargain in good faith may be a fundamental precept of the Wagner model of collective bargaining, it is not a fundamental precept of collective bargaining as it was understood before the introduction of the Wagner Act or as it is still understood today in many parts of the world.Nor does international law support constitutionalizing collective bargaining rights. In Health Services, the majority relied on the proposition that collective bargaining is an integral component of the freedom of association under international law. The majority relied in particular on ILO Convention No. 87. In doing so, it committed two errors. While Canada has ratified ILO Convention No. 87, that Convention deals only with freedom of association and does not at any point specifically discuss collective bargaining. The majority also conflated two distinct ILO Conventions by citing Convention No. 87 but using words from Convention No. 98. Canada has not ratified Convention No. 98 and has no obligations under that Convention. Even if Convention No. 98 were applicable to Canada, Health Services would still have erred in relying on that Convention to constitutionalize a version of collective bargaining that includes a duty to bargain in good faith. While Convention No. 98 provides protection for a process of collective bargaining, it conceives of collective bargaining as being a process of “voluntary negotiation” that is fundamentally distinct from the model of collective bargaining incorporated in the Wagner model. Convention No. 98 does not contemplate the imposition of a duty on parties to bargain in good faith.Nor did invoking Charter values in Health Services support constitutionalizing collective bargaining rights. Health Services maintained that the recognition of a good faith collective bargaining right is consistent with and promotes other Charter rights, freedoms and values: namely, human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy. A duty to bargain in good faith may achieve those ends. However, either the Charter requires something or it does not. The role of the Court is to determine what the Charter requires and what it does not and then apply the requirements it finds to the case before it. It is not to simply promote, as much as possible, values that some subjectively think underpin the Charter in a general sense. As s. 2(d) is silent on questions of economic and social policy, this Court may not intervene on such matters in the absence of a legislative or constitutional grant of authority.Finally, the majority’s approach to collective bargaining in particular and s. 2(d) in general articulated in Health Services is unworkable. It extends constitutional protection to the duty to bargain in good faith without importing other aspects of the Wagner framework and by purporting to protect the process of collective bargaining without also protecting its fruits, neither of which is tenable. For a duty to bargain in good faith not to be an illusory benefit, there must be both a way of dealing with bargaining impasses as well as an effective remedy for persistent breaches of a duty to bargain in good faith. The first requires that there be some default mechanism for resolving the dispute in case an impasse is reached — such as striking or binding arbitration — while the second may require, in extreme circumstances, the imposition by an arbitrator of particular terms of a collective agreement. Each of these goes well beyond protection of a mere process and results in the protection of a particular substantive outcome. The majority’s inability to separate substance and process, and the consequent constitutionalization of collective bargaining terms demonstrates the unworkability of the distinction between substance and process asserted in Health Services.The AEPA does not violate s. 2(d) of the Charter. By enacting the AEPA, the legislature precisely addressed this Court’s ruling in Dunmore. The text, context and purpose of the AEPA clearly demonstrate that the legislature intentionally opted not to include a duty on employers to engage in collective bargaining with employee associations. Section 5 of the AEPA cannot be read as imposing a duty to bargain in good faith. The words of s. 5 are unambiguous: they provide employee associations the opportunity to make representations to an employer. The only obligation on an employer is to provide the employee association with the opportunity to make representations and to listen if they are oral or read and acknowledge them if they are written. To find otherwise, would be to ignore the grammatical and ordinary meaning of the words, and the purpose of the AEPA, and would create ambiguity where none exists. Moreover, nothing in the explicit purpose in s. 1 of the AEPA or the clear words of the Minister who introduced the AEPA support the view that agricultural employees have a right to require agricultural employers to engage in collective bargaining.As for the issues under s. 15, the category of agricultural worker does not rise to the level of an immutable (or constructively immutable) personal characteristic of the sort that would merit protection against discrimination under s. 15.
rce
"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)
No comments:
Post a Comment