By Jason Edwards
In Unions in Court: Organized Labour and the Charter of Rights and Freedoms by Larry Savage and Charles W. Smith make a sober, cautiously-optimistic assessment of the labour movement’s increasing confidence in Charter litigation as an avenue to pursue the interests of union and non-union workers. The book tracks labour’s relationship with the courts, from the late-nineteenth century when state institutions acted with open hostility toward labour organizations, to the new Labour Trilogy of 2015, when the Supreme Court of Canada recognized workers’ right to organize, bargain collectively, and strike as part of 2(d) freedom of association.
Savage and Smith write from the “critical institutionalist” perspective. For those of us not working in academia, the authors describe critical institutionalism as recognizing the class contradictions inherent in the capitalist mode of production while also assigning agency to actors operating within those social relations. Actors—representing labour, capital, and the state—both shape and respond to the social structures that regulate capitalist accumulation. The authors of Unions in Court quote pre-eminent legal historians Eric Tucker and Judy Fudge (page 12):
Class power is not independent of institutions, but neither are institutions independent of class power. Workers and employers struggle to shape the institutional and legal environment in which their relations will be conducted.
Capital and labour do not only struggle to pursue their class interests within a static social structure; they work to change the social terrain within which class struggle takes place. As the authors put it (page 13):
Critical institutionalism allows us to demonstrate how labour’s strategic orientation vis-à-vis the courts is not only shaped by broader economic and political forces but also deeply intertwined with struggles to expand the zone of legal toleration and the very nature of workers’ rights in a capitalist democracy.
The book provides a survey of Canadian labour law that is accessible to new students of labour law and history without veering too far into blind optimism or defeatist ideological purity. The cases surveyed, and their historical context, are explained in a way that is straightforward but not oversimplified. Judicial decisions are often viewed as either a victory or defeat for the labour movement. The truth is rarely so clear.
Chapter 1 provides a brief chronology of labour’s rights before the introduction of the Charter, beginning in the late 1800s when trade union activity constituted criminal conspiracy into the post-1945 era of “industrial pluralism” when trade unions were recognized and collective action was protected. The move from the common law notion of the individual, contractual master-servant relationship toward legislated protection of collective bargaining is correctly attributed to the upswing of militant job action that accompanied the industrialization of production in the first half of the 20th century.
In Chapter 2, the authors argue that the labour movement did not lobby for workers’ interests in anticipation of the Charter because (i) labour was divided on the Quebec separatism issue; (ii) the NDP, the traditional party of labour, did not develop a unified approach to the Charter, and (iii) labour’s traditional aversion to the courts made it sceptical that gains could be made via Charter litigation.
Chapter 3 provides the reader with a synopsis of how labour fared in its first round of Charter litigation, in the 1980s and early-1990s. The Supreme Court of Canada, in its old Labour Trilogy, rejected the notion that collective bargaining was a protected by section 2(d) of the Charter, which guarantees freedom of association.
In Chapter 4 the authors characterize labour’s late-1980s to 2000 move toward, and successes in, Charter litigation as a response to capital’s successful neoliberal program exerting downward pressure on wages. As the authors put it, “labour’s legal response to neoliberalism seemed to offer much more hope than its electoral efforts…” (page 144).
In Chapter 5, the authors introduce the reader to labour’s stunning 2007 Charter victory, BC Health Services (2007 SCC 27), where collective bargaining was found to be protected by section 2(d). Savage and Smith identify the most dramatic points in the Court’s reasons (page 157):
In language that almost all union activists would find agreeable, the court determined that “the right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work “ (para. 82). So important was collective bargaining to this new era of Charter values that the Supreme Court concluded this section of its analysis by recognizing that collective bargaining was the primary tool to “palliate the history of inequality between employers and employees,” thus recognizing the power imbalance that exists in modern workplaces (para. 84).
BC Health Services left open the question of how the substance of the 2(d) right to bargain collectively would take shape. Labour’s hopes were dampened in 2011 when the Supreme Court released its Fraser (2011 SCC 20) decision, upholding Ontario’s Agricultural Employee Protection Act, which required employers to hear or read employee representations in good faith, full stop. The scheme—governing industrial relations in a sector employing the economy’s most precarious and vulnerable workers—provided for no exclusive majority representation or meaningful dispute resolution mechanism, such as recourse to striking or binding arbitration. Despite the win in BC Health Services, the prospects for pursuing workers’ interests through Charter litigation remained uncertain.
In Chapter 6 the authors introduce the reader to the New Labour Trilogy and provide a prospective analysis of Charter litigation as a tool for class struggle. These cases include Mounted Police Association of Ontario, Meredith, and Saskatchewan Federation of Labour (2015 SCC 4). In Mounted Police Association of Ontario (2015 SCC 1), the Court struck down the RCMP’s Staff Relations Representative Program as not being sufficiently independent of management to meet the employees’ 2(d) freedom of association. In Meredith (2015 SCC 2), the Court upheld the Expenditure Restraint Act, which imposed time-limited wage restrictions on RCMP officers, reasoning that the wage restrictions were temporary, the wage restrictions were consistent with outcomes reached through free collective bargaining at numerous other bargaining tables, and free negotiations continued to take place on issues of substance.
Most notable is the authors’ assessment of the Court’s 2015 Saskatchewan Federation of Labour (2015 SCC 4) decision. That decision is broadly (and correctly) heralded as a seminal victory for Canadian labour. Writing for the majority, Justice Abella described the right to strike as “an essential part of a meaningful collective bargaining process.” Abella’s reasons exude an unreserved optimism: “Clearly the arc bends increasingly towards workplace justice.” Savage and Smith acknowledge the importance of this victory without losing themselves in the Court’s rhetoric. They note that labour’s Charter victories have simply slowed the march of neoliberalism, not stopped it. Charter litigation is a defensive tactic, it has been employed to protect unions from the most egregious attacks on workers’ collective rights, but it is structurally ill-designed to advance labour’s more ambitious goals. Savage and Smith write (page 206):
Notwithstanding these important gains, labour’s constitutional victory also comes with several drawbacks. As identified by the Supreme Court and the Saskatchewan Court of Appeal, labour has always had a historical right to strike. In fact, it was the postwar Wagner/PC-1003 model of industrial relations that placed restrictions on the ability of workers to strike. In pointing to those limitations, the Supreme Court championed the notion that a legalized, institutionalised collective bargaining process that includes the right to strike actually leads to labour peace. Therein, of course, is the fundamental contradiction of labour’s constitutional quest: by tying a constitutional right to strike to a meaningful (legalized) collective bargaining process, the court is reinforcing the notion that strikes will be infrequent, apolitical, and narrowly cast. The process is now elevated to constitutional status.
The contradictions identified in the passage above lead the authors to their central thesis. The conclusion the reader is invited to reach is that Charter litigation is a tool that has specific applications. Charter litigation is not a substitute for trade unions to shy away from the political (electoral politics and grassroots movements) and economic (job action). Indeed, when labour has historically had its greatest victories, it has rarely done so within the strict boundaries of the law (page 215):
The achievements of early labour rights did not occur in courtrooms or through the use of human rights discourse. In the depths of the Great Depression, radical union and political organizers promoted unions in institutions that could elevate working-class people through the spread of workplace democracy. The direct actions and other militant tactics associated with the Congress of Industrial Organizations and the radical movements of the 1930s may provide labour with a roadmap in its quest to restore some of its political and economic power. There is no question that the CIO’s willingness to impose significant costs on employers through persistent organizing and strikes helped to build the industrial labour movement. Indeed, the current Wagner/PC 1003 model of labour relations is a product of the labour movement’s long history of class struggle against the worst excesses of nineteenth- and twentieth-century capitalism. Moreover, the Wagner/PC 1003 model’s zone of legal toleration exists only because workers were willing to break exploitative laws through civil disobedience, sit-down strikes, and mass protest.
This conclusion exposes one minor flaw with Unions in Court. The authors rightly contend that the labour movement should take instruction from its history. When organizing a trade union was considered a criminal conspiracy, a groundswell of grassroots, shop-floor actions pushed the state to legalize collective action. Unions were given legislative recognition and union activity was protected as a response to workers’ job actions disrupting production and accumulation. Readers can only be convinced of the authors’ thesis if the readers are made aware of such a history. In an introductory volume such as this, it would be helpful to expend more time exposing readers to labour’s early history of extra-legal successes. We can only take instruction from history that we are aware of.
Another small concern is the language used to describe the courts’ aversion to collective rights. In numerous passages, the authors describe courts and judges as harbouring a “bias” against unions. It would be helpful to remember that judges’ decisions are not made in a legal vacuum. Before unions were formally recognized by the state, there was no legal mechanism whereby courts could sanction collective action. The genesis of the common law of employment begins with the individual, contractual, master-servant relationship. Collective action by employees would fall into a category of civil wrong: inducing breach of contract, conspiracy to commit economic harm, interference with economic relations, nuisance, trespass, defamation, watching and besetting, etc.
While it is clear that this history is not lost on the authors, more precise language would protect readers from the conclusion that courts and judges just plain do not like unions and will always arbitrarily find in favour of employers. It was not the judges that favoured employers, it was the law they were applying. Savage and Smith quote former Saskatchewan Government and General Employees’ Union President, Larry Brown, to make this point (page 73):
Throughout its history, the labour movement has known, or has to re-learn, that the courts and the legal system are not labour’s allies. This is not because the personal biases of the judges, but because the whole foundation of the law and the legal system is the protection of those with political and economic power. The rights of property and property owners are the cornerstone of our common law.
Unions in Court provides a thorough, intellectually rigorous but accessible volume for students of Canadian labour law or labour history. The book is an honest, critical assessment of the labour movement’s early failures and recent successes pursuing workers’ interests through Charter litigation. Freedom of association is an important tool in labour’s belt, but should be wielded strategically and cannot be a substitute for political organizing and the threat of job action.