Mutual Promise: International Labour Law and B.C. Health Services
Supreme Court Law Review, Vol. 48, pp. 365-407, 2009
44 Pages Posted: 3 Oct 2010
Date Written: 2009
Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia represents the current high-water mark for international labour law in Canada, overruling 20 years of the Supreme Court’s own jurisprudence on the freedom of association in Canada and relying heavily on international labour law to ground its decision. By acknowledging the relevance of international labour law to domestic constitutional normativity, the Court appears to be signaling a willingness to keep its international promises and accept the affirmation in Article 2 of the 1998 International Labour Organization (“ILO”) Declaration of Fundamental Principles and Rights and Freedoms and its Follow-up that:
all members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote, and to realize, in good faith … the principles concerning these fundamental rights.
The scope of this article in relation to the decision is deliberately narrow, in that in Part II it focuses on the Court’s choice to root its decision-making in the recognition in international labour law of the freedom of association and right to bargain collectively as a fundamental principle and right at work. Part II evaluates the solidity of the analysis of international labour law, and offers clarification on its interpretive quality.
This article is also fairly broad, in that it seeks both to contextualize the contemporary development of international labour law, and to suggest future interpretive developments. In Part III, I argue that the Supreme Court of Canada’s decision to recognize the right to bargain collectively as a part of the constitutionally enshrined freedom of association in the Canadian Charter of Rights and Freedoms suggests that fundamental principles and rights at work can offer a counterbalance to (rather than mere acceptance of) a particular vision of economic globalization, that is, economic constitutionalism.
In Part IV I argue that B.C. Health Services holds further promise. The Court implicitly recognizes the specificity of the Wagner Act model primarily to Canada and the United States, by defining its understanding of the meaning of collective bargaining to reflect the significance of a particular approach to good faith bargaining within the domestic context. Yet it navigates the specificity and universality wisely, in its stated resistance to constitutionalizing a particular model of collective bargaining. More recent interpretations of B.C. Health Services by lower courts show the importance of consolidating this approach by rooting it in comparative labour law methodology. Comparative labour law methodology can enable the Court to preserve the functions of labour relations mechanisms in context. In this regard, the Court retains the space in subsequent interpretations to maintain the functionality of existing mechanisms while guiding the transition from a Fordist regulatory vehicle of industrial legality toward a (plurality of ) mechanism(s) that more fully capture the collective action challenges of multiple workers in multiple contexts in the new economy. This concept will be discussed in Part IV.
In this delicate navigation between current Canadian regulatory specificity and potential regulatory developments, the Court’s decision-making has the potential not only to learn from but also to inform the subsequent development by the ILO’s supervisory bodies of international labour law as it shores up the practice of industrial pluralism in Canada while leaving space for other forms of organizing to be protected. Notably, in Part IV, section 1, I argue that the Court’s decision-making should enable international labour law to recognize the centrality of a state-supported duty of good faith bargaining to the Canadian and U.S. industrial relations systems. In Part IV, section 2, I integrate a discussion of recent cases to illustrate that ILO decision-making could provide persuasive authority for the Court on how better to understand the equality challenge inherent to collective bargaining structures for the most marginalized workers. International interpretations of non-discrimination might promote a fuller understanding both of section 2(d) and of section 15 of the Charter.
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