Can We Rely on the ILO?

Abstract

In its ruling in B.C. Health Services, the Supreme Court of Canada relied on Canada's obligations under international law, and specifically ILO law, to hold that s. 2(d) of the Charter of Rights and Freedoms on freedom of association not only protects the right of unions to engage in collective bargaining, but also imposes on employers a duty to bargain. The author is critical of the Court's reasoning in advancing the latter proposition, particularly because Canada has not ratified the ILO convention on collective bargaining and therefore is not bound by its provisions. Moreover, he points out, the central tenet of that convention is that ratifying states are required to encourage voluntary - not compulsory - negotiations between employers and workers. The author goes on to note that Canada, in virtue of its membership in the ILO, is covered by that body's 1998 Declaration, which identifies freedom of association as a "core labour right," and also can be the subject of a complaint before the Committee on Freedom of Association (CFA). However, he explains, neither the Declaration nor the CFA procedure results in conventions being binding on non-ratifying states. Furthermore, the Declaration's purpose is merely to "promote" key principles, such as freedom of association; while the CFA is not a judicial body, and its decisions are considered neither binding nor authoritative. In the result, the Supreme Court, partly as a consequence of its misreading of Canada's international law obligations, has constitutionalized a particular model of labour relations - one that is peculiar to North America, even though that model is only one of many ways in which the international law norm of freedom of association can be instantiated and made enforceable. Ultimately, the author concludes, the problem with B.C. Health Services, as with earlier decisions, lies in the Court's refusal to apply the Charter guarantee of equality under s. 15, thus forcing s. 2(d) to do a job for which it is not suited.

Keywords: B.C. Health Services, ILO, collective bargaining, international convention, freedom of association, labour relations