Freedom of Association in Canadian and European Human Rights law

REPORTS □ LAWCOURTS,LABOURRIGHTSANDHUMANRIGHTS Freedom of Association in Canadian and European Human Rights law PeterBarnacle examines a commontheme emergingin Canadian and European human rightslaw PETER BARNACLE isa labour lawyer atWoloshyn &Company in Saskatoon, Canada InGovernment decision 2001,the in Supreme of which Ontario Court it violated of found Canada the that constituissued the a decision in which it found that the Government of Ontarioviolatedtheconstitutional protection offreedom ofassociation setout undersection2(d) of the Canadian Charter of Rightsand Freedomsthroughthe failureto includeagricultural workersin the labourrelationslegislative framework thatprovidedrecognition and collective bargaining rights. The case, Dunmore v. Ontario (Attorney General)required theCourt todistinguish itsearliermorerestrictive case law thatlimited Charter protection totheright tojointrade unionsanddid not extendto associationalactivities of trade unionssuchas collective bargaining andtheright tostrike. TheCourt navigated itswayaroundthat case law byfinding thatthere weresomeassociationalactivities thatwere constitutionally protectedeven ifthatprotection did notextendto collective bargaining itself. In 2002,theEuropeanCourtofHumanRights issued a decision in which it found the Government oftheUnitedKingdom inviolation ofthefreedom ofassociation protections setout underArticle 11 oftheEuropeanConvention of Human Rights by failing to provideprotection against detrimental action for workerswho chose to retainunion representation in their workplace. The case, Wilson and Palmeretal. v. United Kingdom , requiredthe Courtto distinguish its earlierrestrictive decisionswithrespectto freedom of associationprinciples. Thus,the Court hadpreviously heldthat, although collective bargaining was one methoda statecould utiliseto protect a tradeunion'sright to be heard,Article 11didnotguarantee anyparticular method (see: National Union of BelgiumPolice v. Belgium (1975); Swedish EngineDrivers' Unionv.Sweden (1975); and Schettini and Others v.Italy(2000)). The 'voice'protection undertheConvention fell shortof a right of collectivebargaining and a right to strike, buttheabsence of protection of even the minimalist formunderUK legislation was inconsistent with the state's obligations under Article 11.TheCourt inWilsonandPalmer found that 'theunionanditsmembers must howeverbe free,in one way or another, to seek or persuadetheemployer tolisten towhatithas to sayon behalfofitsmembers' [para.44]. In Dunmore , the Supreme Court ruled in favour oftheworkers as theycould notbenefit froma collectivevoice in the absence of any rights forcollectivebargaining foragricultural workersunder Ontario law. In Wilsonand Palmer ;theviolation arosebecausetheEuropean CourtfoundthatUK law allowedforemployers totreat lessfavourably employees whorefused to renouncetheir unionmembership. The workers forced togiveup their tradeunionrights lostthe collective voicebenefits. Therearemanysimilarities betweenthesetwo cases. First, despitethefavourable outcomesin both thesecases, the ability of bothcourtsto addresstheissuesbeforethemwas constrained by thepreviousrestrictive case law. Thus,both courtsstruggled to addresstheobviousinjustice before them arising from thefailure oftherespectivegovernments toprotect associational activities of tradeunions,notsimply theright to hold a unioncard.Bothfound a waytodo so inthecircumstances before them byfinding a wayaround that earlier case law,butwithout actually rejecting thatlaw. Second,in doingso bothcourtsalso relieduponinternational law,including ILO conventions and recommendations and decisionsof the Committeeon Freedom of Association. Finally, interms ofremedy, bothcourts required positive actionbygovernment toaddress theviolationfound . Forexample, inDunmore: 'if..thiscourtisimposing positive obligations on thestate, thatisonlybecausesuchimpositionisjustifiable in thecircumstances' [para. 29],whilein Wilson and Palmer, the EuropeanCourt foundthat:Ht istheroleof thestatetoensurethattradeunionmembers are notprevented orrestrained fromusing their uniontorepresent them inattempts to regulate their relations with their employers' [para.67]. Thissimilarity in processand approachwithout reference to one anothersuggesteda developmentof commondomestic freedom of associationprinciples informed by,butindependent of, international law.Thisdevelopment is nowreinforced bymorerecent decisionsofthesecourts. First, inthe2007BCHealth Services theSupreme Courtof Canada foundthattheGovernment of British Columbia violated thefreedom ofassociation protection set out in section2(d) of the Charter bysubstantially interfering inthecollective bargaining rights ofhealth caretradeunionsand their members through legislation voiding collective agreementprovisionswith health care employers that limited orrestricted contracting out ofworktoprivate employers. TheCourt heldthat freedom ofassociation included protection against government interference infundamental collective bargaining rights. Notethat indoingso,that unlike intheearlier Dunmore case,theCourt wasunable toavoidordistinguish itsearlier caselawinwhich ithadheldthat collective bargaining was an associational activity outsidethescope offreedom of associationprotection under the Charter. The Court reviewed that law,notedthebeginnings of thechangeinpathinDunmore ,andstated: INTERNATIONAL union rights Pa9e 20 Volume 16Issue 3 2009 In earlier decisions, themajority viewofthe Supreme Court ofCanada wasthattheguaranteeoffreedom ofassociation did notextend tocollective bargaining. ..Weconcludethe grounds advancedin those earlier decisions fortheexclusion ofcollective bargaining from theCharter's protection offreedom ofassociationdo notwithstand principled scrutiny and shouldberejected '. [para.22] In itsanalysis thatled to a finding ofviolations, the Courtreliedon a historical reviewof the importance and recognition in Canadianlaw of trade unionassociation and collective bargaining and theapplication of Charter valuesprotecting collectivebargaining.However, of particular interest hereisthat theCourt also againreviewed and appliedinternational freedom ofassociation principles tosupport itsconclusion [para.69-791. Moving backto Europe,ina 2008case,Demir v. Turkey , theEuropeanCourtof HumanRights Grand Chamber upheldan earlier decisionofthe Courtin whichtheGovernment of Turkey was found tohaveviolated thefreedom...

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