by Ian Johnstone and Patrick Simon
In its first decision of 2015, the Supreme Court of Canada held that the labour relations scheme that applies to RCMP members violated their constitutional guarantee of freedom of association. It gave Parliament one year to pass new legislation.
Historically, RCMP members were forbidden from participating in any union activities. Even after collective bargaining was introduced for federal public employees in the 1960s, they were excluded from the general labour relations legislation, including the current Public Service Labour Relations Act (the PSLRA), and from the right to unionize or engage in collective bargaining.
Instead, members consult with management through 34 elected representatives under the Staff Relations Representative Program (SRPP). Two SRRP reps sit on the RCMP Pay Council, a forum in which pay and benefits are discussed. RCMP members also benefit from legal assistance on matters relating to their employment through the Mounted Police Members’ Legal Fund.
The Mounted Police Association of Ontario (MPAO), a voluntary association of RCMP members, challenged this limited labour relations framework in May 2006 on the basis that it infringed freedom of association, guaranteed under section <2(d)> of the Charter of Rights and Freedoms. An Ontario judge upheld their claim, but the Ontario Court of Appeal reversed that decision. The MPAO appealed to the Supreme Court.
A six to one majority held that the regulations establishing the SRRP and the exclusion of members from the PSLRA were unconstitutional.
In the majority judgment, Chief Justice Beverley McLachlin and Justice Louis LeBel wrote that
The court explained that the section does not guarantee that all employees must be able to engage in conventional, adversarial collective bargaining incorporating the right to strike. Rather, to qualify as meaningful collective bargaining, a labour relations system must allow employees a degree of choice over who represents them in discussions with management.
Further, the association through which employees pursue their workplace goals must be reasonably independent from the control or influence of the employer, in order to ensure that the association is aligned with the interests of employees.
Viewed in light of these constitutional principles, the labour relations arrangements for RCMP members amounted to an unjustifiable infringement of their freedom of association. Although SRRP representatives are elected, RCMP members did not choose the SRRP as their preferred association to advance their interests.
Further, the SRRP is not independent from RCMP management. The scheme is an internal human resources discussion forum, rather than an independent avenue through which meaningful consultation may take place.
Likewise, the court held that the purpose of excluding members from the PSLRA is to deny them the opportunity to exercise their freedom to associate in order to pursue their workplace goals. Such a purpose is unconstitutional.
The court ruled that the offending legislation would become invalid one year after the judgment, in order to give Parliament time to craft a legislative scheme that complies with the Charter.
The government has not publicized how it intends to proceed. The Supreme Court’s judgment contains clues as to what sort of solution might be acceptable from a constitutional perspective.
The court explicitly stated that the Charter does not protect any particular model of labour relations, and that even though excluding RCMP members from the PSLRA was unconstitutional, there is no constitutional requirement to include them within the framework. It would therefore be open to Parliament to devise an alternative collective bargaining procedure, provided the scheme adopted offers RCMP members the opportunity to engage in meaningful collective bargaining through a reasonably independent organization.
As noted in the judgment, the RCMP is the only Canadian police force in which the terms of members’ employment are not regulated by a collective agreement. However, the approach taken in respect of other Canadian police forces varies between, and even within, provinces. This presents various models that the government may choose to adopt in any proposed new legislation. For example:
In Ontario, municipal police force members are specifically excluded from the application of the Labour Relations Act, and are prohibited from joining trade unions without the consent of their police chief. Members may, however, join associations not affiliated with trade unions, and such associations may bargain collectively with municipal police services boards.
Legislation may direct that a particular association represents employees in collective bargaining. For example, the Ontario Provincial Police Association is, by law, the exclusive bargaining agent for OPP members. Neither the association nor individual members may affiliate with a trade union.
In some other provinces, including New Brunswick and British Columbia, police officers are covered by the regular labour relations legislation, and may join trade unions in the same manner as other employees.
There are also some similarities across the country, including the curtailment of the ability of police officers to engage in industrial action, with compulsory arbitration often substituted as a means of getting beyond an impasse in collective agreement negotiations.
Another issue that will need to be addressed is whether bargaining for RCMP members will be decentralized. Centralized bargaining would entail one set of negotiations, and one resulting agreement, for the entire force. However, bargaining could take place, in respect of some or all issues, at a local level. For example, separate negotiations could take place for each RCMP division.
Irrespective of what path the government proposes to follow, it is plain that the status quo will not persist for more than a few more months. From next year, if not sooner, RCMP members are likely to be subject to collective bargaining procedures that more closely resemble those in place in other Canadian jurisdictions.
BIO
Ian Johnstone and Patrick Simon are partners in the law firm of Johnstone & Cowling LLP. Their specialty is in police, liability and labour relations. Contact: psimon@johnstonecowling.com
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