In a 6 to 1 decision the Supreme Court of Canada struck down provisions preventing the RCMP from unionizing. The decision was released January 16th.

The Court determined the exclusion of the RCMP from federal labour relations legislation was unconstitutional. The Court also determined that former regulations imposing an alternate labour relations regime on RCMP members were unconstitutional.

The Public Service Labour Relations Act provides a general framework for federal public sector employees to partake in collective bargaining and address unfair labour practices. The Act excludes RCMP members from this framework and, in conjunction with an administration order, the Act prevents RCMP members from bargaining collectively.

Instead, the RCMP Regulations impose a non-unionized labour relations program. This program allows representatives of RCMP members to consult with management on human resources issues. However, the ultimate decisions rest with management. (Although the provisions imposing the program were repealed, they were replaced by substantially similar provisions.)

The Charter of Rights and Freedoms establishes the fundamental freedom of association. The freedom of association guarantees, among other rights, the right of employees to associate to pursue collective workplace goals – i.e. the right to collective bargaining.

The Court determined that the exclusion of RCMP members from the Act, and the imposition of the alternate labour relations program, infringed the freedom of association.

The labour relations program was not free from the employer’s control and left the members in a “disadvantaged, vulnerable position”. This lack of independence from management infringed the freedom of association.

The Court considered whether the infringing provisions could be saved by section 1 of the Charter. Section 1 permits the Charter’s rights and freedoms to be limited, but only where reasonable and justifiable.

The Court heard the argument that prohibiting collective bargaining and unionism aimed to ensure a stable, reliable, and neutral police force. Despite this argument the Court concluded that the provisions could not be saved by section 1 and were invalid (or would have been invalid if not repealed).

The Court noted that the RCMP is the only police force in Canada without a collective agreement, and that the RCMP was not materially different from other forces for the purpose of this argument.

Interestingly, this decision required the Court to revisit a 1999 decision (Delisle) where the exclusion of the RCMP from collective bargaining did not infringe the freedom of association. The Court explained that it now takes a more generous approach to labour relations, and that the earlier case involved a narrow question.

The Court’s decision will result in a void in the RCMP’s labour relations regime, although this impact will be delayed by one year. Importantly, the Court left it up to the parties to determine how to fill this void. While the Court’s decision allows the RCMP to bargain collectively, it does not impose a union or comment on whether the RCMP should form a union.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.

By , On , In Employment Law