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Supreme Court rules collective bargaining protected by charter
at 11:28 on June 8, 2007, EDT.

OTTAWA (CP) - The collective bargaining process is protected by the Charter of Rights, the Supreme Court said Friday in ruling that will have a major impact on relations between governments and their unions.

The high court sided with a group of British Columbia health unions seeking to overturn a 2002 provincial law which essentially erased portions of their contracts.

The high court threw out sections of the law and gave the province 12 months to fix it.

The justices ruled 6-1 that portions of the Health and Social Services Delivery Improvement Act interfered with the collective bargaining process and said, for the first time, that this process is protected by Section 2 of the charter.

The high court had never specifically said that collective bargaining is protected under charter guarantees of freedom of association.

But this decision, written by Chief Justice Beverley McLachlin and Justice Louis LeBel, rejects the arguments from past cases.

"We conclude that the grounds advanced in the earlier decisions for the exclusion of collective bargaining rights from the charter's protection of freedom of association do not withstand principled scrutiny and should be rejected," they wrote.

They said it has been an evolutionary process.

"The protection enshrined (in the charter) may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining."

The B.C. law was rushed through the legislature in three days in what was described by the government as an effort to deal with a health-care cost crisis by giving hospitals and other employers more flexibility in their operations.

The law overruled many existing contracts. It allowed for contracting-out of non-clinical services previously performed by union members, eased lay-off notice provisions, tightened up bumping rights for senior employees, and cut benefits for laid-off workers.

It also prevented unions for trying to renegotiate some of those provisions in subsequent contracts.

Lower courts in B.C. ruled against the unions, saying the Supreme Court had never specifically said that collective bargaining is protected by the charter.

The justices agreed that the province faced a tough situation.

"The difficulty, however, is that the measures adopted by the government constitute a virtual denial of the (charter) right to a process of good faith bargaining and consultation," the decision said.

It said the law's provisions made a mockery of the idea of consultation with unions.

The justices also said there was little evidence that the government had looked for other, less-intrusive measures or made any meaningful effort to consult with the unions before brining in the legislation.

"The government presented no evidence as to why this particular solution was chosen and why there was no consultation with the unions about the range of options open to it."


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