CONFIRMATION,
AGAIN, THAT THE CHARTER WILL NOT HELP PEOPLE WHO WANT TO JOIN UNIONS
In Delisle v. Canada, a Supreme Court of Canada decision released
September 9, 1999, the Court, by a 5-2 majority held (again), that the Charter does
not give workers the right to join unions.
RCMP officers challenged their exclusion from collective
bargaining under the Canada Labour Code. They argued their Charter rights to
freedom of association (s. 2(d)) and equality (s. 15) were violated.
a) Freedom of Association
The Court held that the right to associate did not
include the right to certification as a union. People have the right to form groups to do
the same things they can do individually (like talk). But, there is no right to form
groups to do things that only a collective can do (like take group action including
collective bargaining). To put it another way, people have to be allowed to join unions as
clubs but there is no right to form a union that can collectively bargain. As the Court
put it, "Nothing requires the RCMP to set up mechanisms for negotiating working
conditions or grievance arbitration; it can very well set all working conditions for its
members without violating s. 2(d). All freedom of association implies is that the existing
mechanisms are as open to independent employee associations as to individual RCMP members,
absent a trade union representation regime for the RCMP, of course."
b) Equality
It is clear that the effect of the statute is to deprive
RCMP members of a benefit available to most other public service employees. However, the Charter
right to equality is confined to those asserting rights on the basis of grounds
specifically listed in s. 15 or analogous to them. Employment is not a protected or
analogous ground. As the Court stated:
"What…are the criteria by which we identify a
ground of distinction as analogous? The obvious answer is that we look for grounds of
distinction that are analogous or like the grounds enumerated in s. 15—race, national
or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems
to us that what these grounds have in common is the fact that they often serve as the
basis for stereotypical decisions made not on the basis of merit but on the basis of a
personal characteristic that is immutable or changeable only at unacceptable cost to
personal identity…To put it another way, s. 15 targets the denial of equal treatment
on grounds that are actually immutable, like race, or constructively immutable, like
religion. Other factors identified in these cases as associated with the enumerated and
analogous grounds, like the fact that the decision adversely impacts on a discrete and
insular minority or a group that has been historically discriminated against, may be seen
to flow from the central concept of immutable or constructively immutable personal
characteristics, which too often have served as illegitimate and demeaning proxies for
merit-based decision making.
In this case the appellant has not established that the
professional status or employment of RCMP members are analogous grounds. It is not a
matter of functionally immutable characteristics in a context of labour market
flexibility. A distinction based on employment does not identify, here, "a type of
decision making that is suspect because it often leads to discrimination and denial of
substantive equality".
Summary:
The Charter does not protect the right to
collective bargaining. Based on this reasoning, it would also be difficult to argue that
OPSEU members had the right not to be discriminated against because of being unionized
Crown employees.
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