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Campbell Government Violated Charter Rights: Supreme Court

Tearing up health union contracts ruled unconstitutional.

By Tom Sandborn 8 Jun 2007 | TheTyee.ca

Tom Sandborn is a regular contributor to The Tyee with a focus on labour and health issues. Read his previous articles here.

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HEU rally against Bill 29, May, 2004.

In a case with big implications for B.C.'s health care system and collective bargaining across the nation, the Supreme Court of Canada has ruled unconstitutional key parts of Bill 29, a law passed by the BC Liberals in 2002.

The Campbell government used Bill 29 to tear up a contract with the B.C. Hospital Employees Union. The law opened the door to privatization, contracting out, layoffs by the thousands and plummeting wages in hospitals and long term care facilities across the province. (One example at a Nanaimo seniors care home was the focus of a Tyee story last week.)

Critics, including the International Labour Organization, denounced the law as an attempt to remove union protections from workers in health care, and the legal challenge was brought by the Hospital Employees Union, the B.C. Government and Service Employees Union and other health care union groups.

This morning, the Court struck down sections of the legislation because they deny the freedom of association guarantee of the Charter of Rights' section 2(d). The sections violate citizens' rights "either by disregarding past processes of collective bargaining, by pre-emptively undermining future processes of collective bargaining, or both," the Court ruled.

Unions call for layoff freeze

The 6-1 decision is expected to lead to big changes in the province's health care system. However, as is common when the court strikes down legislation, the ruling will not come into effect for a year.

In the meantime, the HEU is calling for an immediate moratorium on any further Bill 29 related lay-offs in B.C. health care until the implications of this landmark ruling have been determined.

"This is a huge victory for health care and health care workers in B.C.," said HEU secretary-business manager Judy Darcy. "We are particularly pleased that the court has ruled for the first time in history that the right to collective bargaining is protected by the Charter. This is good for working people in general, as well as for our membership."

"We are calling on the government to re-instate the over 650 workers laid off most recently under Bill 29 and for a moratorium on any further lay-offs inspired by the law the court just struck down. As usual, the Supreme Court has given the government a year to replace the discredited law, but Bill 29 has already caused far too much damage and chaos," Darcy said.

"The government shouldn't create yet more chaos during the next year," she added. "We'll be calling on the minister to sit down with us as soon as possible and talk about how to proceed."

Impact said to be national

Vancouver lawyer Joe Arvay, one of the legal team acting in the union appeal to the Supreme Court, says the win will change the labour relations landscape across Canada.

"This is a huge reversal of previous rulings that failed to recognize the Charter's protection of collective bargaining," he told the Tyee shortly after the decision was announced. "Workers now have a powerful tool to insure that the government meets its obligations under freely negotiated contracts. The government no longer has a final veto on negotiated deals."

George Heyman, president of the B.C. Government and Service Employees Union, called the Supreme Court decision "a very great victory for working people across Canada."

Heyman supported the call from the HEU's Darcy for an immediate meeting with the government in Victoria and echoed her demand that recent health sector layoffs be reversed and for a moratorium on any further Bill 29 related layoffs during the year of grace provided by the court.

"Any further contracting out or layoffs would be morally wrong and likely lead to legal repercussions for the government," he told the Tyee.

Health minister's e-mailed response

Minister Abbott did not respond directly to Tyee questions about union calls for an immediate meeting and a moratorium on contracting out and layoffs, but his spokesperson sent an e-mail with this statement from the Minister:

"Government understood Bill 29 to be legal and constitutional under the jurisprudence prevailing at the time the bill was passed. Since the Supreme Court has now set out a new legal framework, government will need to study the decision, take some time to review the implications and determine how we will go forward.

"We are obviously disappointed that the Supreme Court has reversed several of its own previous decisions in arriving at this decision. We based the legislation on the rules of the day, and now it seems those have changed.

"Bill 29 was designed to put patients first by improving the ability of health authorities to allocate resources where they are needed. We brought Bill 29 into force to focus on improving sustainability in the health system, and ultimately allowing patient care to be maximized. "These new rules will take effect in 12 months. In the meantime, government will thoughtfully evaluate the decision and determine its course of action for the future. This will include discussions with health authorities and contracted service providers, which will be impacted by the decision."

Women and minorities hard hit

Bill 29 and its amending legislation Bill 94 had been widely portrayed by critics as attempts by the Campbell government to weaken public sector unions and to drive down wages in a workforce that is predominantly female and employs higher levels of immigrants and visible minorities than reflected in the general population.

Women make up 46 per cent of the Canadian paid workforce, 59 per cent of public sector workers and more than 85 per cent of unionized workers in health care. More than one out of four HEU members belong to a visible minority, compared to less than one in five in the general population.

The challenged legislation removed language from existing collective agreements that barred the employer from shifting the work to non-union subcontractor or one with a less demanding union agreement. The bill made it legally impossible for unions in health care to win such contract language in future negotiations.

The bill also stripped health sector workers of a right enjoyed by workers in all other sectors: the right to retain their union contract if their employer sold or otherwise changed the status of an existing enterprise -- so-called "successorship rights."

Fraser Institute backed bill

The day before the Court made its decision, the sweeping powers of Bill 29 were defended by Michael Walker, senior fellow at the Fraser Institute, a pro-business think tank in Vancouver. The Campbell government was right to tear up government contracts with health workers under Bill 29, Walker argued, because those contracts were signed by a previous government supported by labour. "One arm of the trade union movement was telling another arm of the movement, the NDP government, what to do."

As a result, Walker argued, those health care contracts "weren't real contracts."

"These weren't contracts in the ordinary sense," Walker said. "They were government policy, and government policy can change when the government changes. That's all that happened."

Walker said his Fraser Institute provided "calculations" that "gave ample reason for the new government to doubt that the contracts were done in the public interest. Unionized workers providing exactly the same services in private sector hotels were paid much less than unionized hospital workers."

"Michael Walker clearly doesn't understand the law and has contempt for working people and their unions," said the BCGEU's Heyman in response to Walker. "To say that contracts were imposed in this case is both foolish and wrong."

Sector said to be in upheaval

According to Mike Old of the HEU, as many as 8,000 health care workers lost their union jobs in the immediate fall out from Bill 29. Long term care in B.C., which includes both for-profit and not-for-profit facilities, is a sector now buffeted by chaotic management as owners rotate subcontractors to remove or weaken union contracts, Old said.

The day before the Supreme Court ruling, HEU workers at the Nanaimo Seniors Village called for a province-wide day of mourning for the damage done by Bill 29 to B.C. health care. Workers at that long term care facility have been fired and re-hired at lower wages three times since the passage of Bill 29, the most recent pink slips having been issued last month.

The union local that represents Village workers is asking supporters to wear black arm bands all day on July 9, and to sound car horns at noon as evidence of support for health care workers.

Carolyn Askew, a union-side labour lawyer for more than 30 years, said Bill 29 was a disgrace.

"The bill itself was a shocking and cruel attack on long serving employees in healthcare," she told the Tyee. "It was an attack on patients too, an attack that changed the workforce from one that was well paid, experienced and valued into a constantly shifting cast of itinerant workers. This is not what patients want or what they need. Patients need stability of care, and Bill 29 undercuts that stability."

EXCERPTS FROM THE SUPREME COURT RULING ON BILL 29

"The section 2(d) infringement is not justified under s. 1 of the Charter. While the government established that the Act's main objective of improving the delivery of health care services and sub objectives were pressing and substantial, and while it could logically and reasonably be concluded that there was a rational connection between the means adopted by the Act and the objectives, it was not shown that the Act minimally impaired the employees' s. 2(d) right of collective bargaining. The record discloses no consideration by the government of whether it could reach its goal by less intrusive measures. A range of options were on the table, but the government presented no evidence as to why this particular solution was chosen and why there was no meaningful consultation with the unions about the range of options open to it. This was an important and significant piece of labour legislation which had the potential to affect the rights of employees dramatically and unusually. Yet, it was adopted rapidly with full knowledge that the unions were strongly opposed to many of the provisions, and without consideration of alternative ways to achieve the government objective, and without explanation of the government's choices. [143 144] [147] [149] [156] [158] [160 161]"

"In this case, the freedom of association of health care employees has been infringed in several instances, because ss. 4, 5, 6(2), 6(4) and 9 of the Act (in conjunction with s. 10) interfere with their right to a process of collective bargaining with the employer. Sections 4 and 5 nullify some existing terms of collective agreements, limit the scope of future negotiations and prevent workers from engaging in associational activities relating to the important matter of transfer and assignment of employees. Sections 6(2) and 6(4) nullify past collective bargaining relating to contracting out, thereby rendering the process nugatory, and preclude future collective bargaining on the issue. These provisions concern a significant issue of employment security, and negotiating such issues is one of the purposes of associational activities in the workplace. Lastly, s. 9 makes collective bargaining over specified aspects of layoff and bumping meaningless and invalidates parts of collective agreements dealing with these significant workplace issues. [186 188] [252]"

"We conclude that the s. 2(d) guarantee of freedom of association protects the capacity of members of labour unions to engage in collective bargaining on workplace issues. While some of the impugned provisions of the Act comply with this guarantee, ss. 6(2), 6(4) and 9 breach it and have not been shown to be justified under s. 1 of the Charter. We further conclude that the Act does not violate the right to equal treatment under s. 15 of the Charter. In the result, the appeal is allowed in part."

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