A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada By Alan Bogg and Keith Ewing (I) INTRODUCTION In BC Health Services, 1 the Supreme Court of Canada appeared to defy gravity in holding that the right to freedom of association in the Charter of Rights and Freedoms included the right to collective bargaining. In a path breaking decision, the SCC acknowledged that collective bargaining emerges as the most significant collective activity through which freedom of association is expressed in the labour context, and said boldly that the concept of freedom of association under s 2 (d) of the Charter includes this notion of a procedural right to collective bargaining. 2 This was followed a year later by the equally momentous decision of the European Court of Human Rights in Demir and Baykara 3 where it was held that the right to freedom of association in the European Convention on Human Rights is also to be read to include the right to bargain collectively, on this occasion at the level set by ILO Convention 98. In its most recent decision in Fraser, 4 however, the Canadian court appears to have beaten a retreat, responding in part it seems to the remarkable interventions of law professors critical of BC Health Services, in what was perhaps one of the most extraordinary attacks on one of the most positive decisions on workers rights in any common law jurisdiction for at least a generation. 1 Health Services and Support Facilities Subsector Bargaining Association v BC, 2007 SCC 27; [2007] 2 SCR 391. 2 Ibid, para 66. It was also said that the protection enshrined in s 2(d) of the Charter may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining (para 68). 3 Demir and Baykara v Turkey [2008] ECHR1345, (2009) 48 EHRR 54. 4 Ontario (AG) v Fraser, 2011 SCC 20.
Needless to say it is an intervention for which the agricultural workers of Ontario have little cause to be thankful. The case has given rise to a great deal of debate and controversy in Canada, and although we were initially sceptical of the doubts raised by the Canadian unions about the SCC decision, 5 we now accept that the SCC may offer only the most minimal protection for trade union activity, and that in doing so it falls some way short of the standard set by the ECtHR in Demir and Baykara. For despite the claims that s 2(d) of the Charter protects the right to bargain collectively, the process explained by the majority is not a process of collective bargaining as understood in the international treaties designed to promote such activity, nor indeed the labour law statutes applicable in Canada to workers other than the agricultural workers of Ontario (who inexplicably find themselves excluded from standard labour law protection). In this paper we seek to (i) explain why the claims of the Supreme Court of Canada (SCC) that it was affirming collective bargaining are in fact an affirmation of a process that falls some way short of collective bargaining, and (ii) consider and refute the principal arguments advanced to deny the claim that freedom of association includes the right to collective bargaining as that term is properly understood. In what is clearly a counter-offensive by big business, these arguments were advanced in Fraser not only to influence the decision of the minority, but evidently to influence the majority in its delivery of an impoverished conception of collective bargaining. (II) THE NEW LABOUR TRILOGY IN CANADIAN CONSTITUTIONAL LAW: DUNMORE, B C HEALTH SERVICES, AND FRASER Fraser is the third in a new trilogy of decisions of the SCC dealing with the question whether and if so how far the right to collective bargaining is protected by the Charter s guarantee of freedom of association. 6 In Dunmore v Ontario, 7 the SCC held that the exclusion of agricultural workers from the provincial Labour Relations Act was a violation of their right to freedom of association. According to Bastarache J, section 2(d) should be given a purposive interpretation, 5 According to UFCW National President Wayne Hanley, the Supreme Court of Canada delivered a decision that "abandoned agriculture workers in Ontario in their fight for dignity and respect. See also V Verma, Report on the Fraser Decision (2011) 18(2) International Union Rights 24. 6 On the first trilogy, see T J Christian and K D Ewing, Labouring under the Canadian Constitution (1988) 17 ILJ 7 2001 SCC 94, [2001] 3 SCR 1016.
that is to say one which aims to protect the full range of associational activity contemplated by the Charter and to honour Canada s obligations under international human rights law. 8 In a similar vein, Bastarache J continued by saying that the right to organize must extend to the exercise of certain collective activities, such as making majority representations to one s employer, 9 and explained that these activities are guaranteed by the purpose of s. 2(d), which is to promote the realization of individual potential through relations with others, and by international labour jurisprudence, which recognizes the inevitably collective nature of the freedom to organise. 10 These developments were followed in the landmark BC Health Services case referred to above, which in retrospect is full of contradictions and obfuscation not clearly visible at the time it was delivered. It certainly starts off boldly, with words which it is now impossible to contemplate a mainstream politician ever using. After noting that human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underpin the Charter, the Chief Justice also said that all of these values are complemented and indeed, promoted, by the protection of collective bargaining. 11 Still less are we likely to hear a mainstream British politician celebrate the virtue of collective bargaining as enhancing the.... value of equality, or recognise that one of the fundamental achievements of collective bargaining is to palliate the historic inequality between employers and employees. 12 The problem, however, is to establish what the court meant by collective bargaining for these purposes. The Chief Justice said that the constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment, which sound ambitious. 13 However, at another point in the judgment, collective bargaining was defined to mean no more than that employees have the right to unite, to present demands to health sector employers collectively and to engage in discussions in an attempt to achieve workplace-related goals. Section 2(d) imposes corresponding duties on government employers to agree to meet and discuss with them. 14 8 Ibid, para 13. 9 Ibid, para 30. 10 Ibid. 11 2007 SCC 27; [2007] 2 SCR 391, at para 81. 12 Ibid, para 84. 13 Ibid, para 89. 14 Ibid..
What the court also said consistently with the above is that the right to collective bargaining thus conceived is a limited right. 15 Not only in the sense that it is a process right (which does not guarantee any substantive outcome), 16 but more importantly because the right is to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method. 17 But although eschewing a commitment to a particular model of collective bargaining, the court was not eschewing a commitment to collective bargaining as such, cruclally emphasizing at later passages in the judgment two essential features of collective bargaining, to both of which we return below. The first was the need for a process that involved negotiation: the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer that we call collective bargaining. 18 The second is the collective right to good faith negotiation and consultation. 19 This was followed by an extensive discussion of what good faith means in this context, 20 the majority citing a passage from a SCC decision in 1996 where it was said that In the context of the duty to bargain in good faith a commitment is required from each side to honestly strive to find a middle ground between their opposing interests. Both parties must approach the bargaining table with good intentions. 21 It is important at this stage to emphasise that what the SCC was saying here is (i) not that there should be a collective process, but that (ii) the collective process should constitute collective bargaining. True, the SCC suggested that the principle of collective bargaining was not necessarily defined in accordance with any objective standard, but rather by what we call collective bargaining. 22 At the heart of that principle, indeed a fundamental precept of what we call collective bargaining, is the duty to negotiate and consult in good faith. 23 A rather different approach appears to have been taken in Fraser, the third case in the recent collective bargaining trilogy. Here the court split three ways, with the majority confirming BC Health 15 Ibid, para 91. 16 Ibid. 17 Ibid 18 Ibid, para 92. 19 Ibid, para 93. 20 Extensive in the sense that it occupies paras 97 107 of the judgment. 21 Royal Oak Mines Inc v Canada (Labour Relations Board), [1996] 1 SCR 369, para 41. 22 2007 SCC 27; [2007] 2 SCR 391, para 92. 23 Ibid, para 96.
Services, 24 but also upholding the Agricultural Employees Protection Act, 2002 (AEPA), the contested Ontario statute passed in the wake of Dunmore to provide a system of collective representation for farm-workers. The Act continued the exclusion of farm-workers from the scope of the Labour Relations Act and introduced a diluted form of worker representation in its place, giving an employee s association the right to make representations to an employer about terms and conditions of employment, the employer being required to listen to the representations if made orally, or read them if made in writing. 25 Rothstein J also upheld the Act but in doing so controversially challenged the BC Health Service decision which he proposed should be reversed, so that the right to collective bargaining should no longer be constitutionally protected. Abella J occupied a third position, which was to affirm BC Health Services, but to say powerfully that the AEPA was in breach of the constitutional right to collective bargaining developed in that case. So far as the majority is concerned, perhaps the best that can be said is that the position is now very unclear, for it is certainly arguable (though perhaps not yet conclusively so) that they have created what may be regarded as a revised definition of collective bargaining. The uncertainty appears largely because of the contradictions in the majority decision, which is in large part an over-defensive response to the attack on BC Health Services by Rothstein J. True, the Chief Justice and LeBel J (in delivering the majority judgment) apparently re-affirm BC Health Services and say that if s 2(d) merely protected the right to act collectively and to make collective representations, the legislation at issue in that case would have been constitutional. 26 Also true is the observation that the majority decision in BC Health Services should be interpreted as holding what it repeatedly states: that workers have a constitutional right to make collective representations and to have their collective representations considered in good faith, 27 and again that s 2(d) of the Charter confirms a right to collective bargaining, defined as a process of collective action to achieve workplace goals, requiring engagement by both parties, and that the bottom line may be simply stated: farm workers in Ontario are entitled to meaningful processes by which they can pursue workplace goals. 28 But it is also true that in breathing constitutional life in AEPA s right to make representations, the majority in Fraser emphasized 24 Though in delivering a concurring judgment, Deschamps J more clearly endorsed a diluted version of BC Health Services than may have the majority (McLachlan CJ, and Binnie, LeBel, Fish and Cromwell JJ). 25 AEPA, 2002, s 5(6). If the representations are made in writing, the employer must give the employee s association a written acknowledgement that he or she has read them (s 5(7)). 26 2007 SCC 27; [2007] 2 SCR 391, para 50. 27 Ibid, para 51 28 Ibid, para 117.
only the duty to consider these representations in good faith, but did not at any point of the judgment rehearse the other limb of BC Health Services (to which reference was made earlier in the majority judgment) that collective bargaining requires negotiation in good faith, not the consideration of representations in good faith. The unanswered question (which it will take further litigation to resolve) is whether the crucial paragraphs 101 113 (where the connection with negotiation is not made) are to be read subject to what is said at paragraphs 40 42 where the connection is made. 29 (III) WHAT IS COLLECTIVE BARGAINING? DOES FRASER PROTECT IT? Although a welcome re-affirmation of aspects of the decision in BC Health Services, there are thus concerns that Fraser marks a retreat from its treatment of collective bargaining, though we accept that the majority judgment is genuinely ambiguous on the point. 30 On one reading, however, there is only a right to make representations, albeit one that has been inflated beyond the statutory framework to mean that these representations must be considered in good faith. This is the position which the reader of the judgment is encouraged to take by paragraphs 101 to 113 where the majority explain how AEPA, 2002 can be read in a manner which is not unconstitutional. But the fact that the obligation to consider employee representations in good faith is referred to at least seven times in eight paragraphs may not necessarily convert the right to make representations into a right to bargain, as that term is objectively understood. 31 Such a right can only exist if the embryo of representation is to metamorphose into the adult of negotiation by the tenuous link provided in paragraph 106 in which the majority benignly read the intention of the government as being an affirmation that the AEPA did not institute the dominant Wagner model of collective bargaining, or bring agricultural workers within the ambit of the LRA, not that the Minister intended to deprive farm workers of the protections of 29 Note especially para 40 where reference is made to para 90 in BC Health Services where it is said that the employees right to collective bargaining imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation. At para 41 in Fraser, the majority then elaborated on what constitutes good faith negotiation, and in doing so said that section 2(d) requires the parties to meet and engage in meaningful dialogue. They must avoid unnecessary delays and make a reasonable effort to arrive at an acceptable contract. Fraser stands and falls on whether this particular duty can read into AEPA, 2002, s 5(5), (6). The discussion at paras 101 113 in Fraser is, however, silent on what seems to us to be the crucial point. 30 We speculate that this ambiguity is caused by the fact that the judgment is the work of two authors, and wonder whether paragraphs 40 42 were written by the same person as paragraphs 101 113. 31 Fraser, paras 101, 102, 103, 104, 106, 107, and in case you missed it first time, 108.
collective bargaining that s 2(d) grants. 32 As we have seen, the s 2(d) standard of collective bargaining anticipates not representations in good faith, but negotiations in good faith. The risk presented by what may be the revised Charter standard of a meaningful process by which workers can pursue workplace goals, 33 is that the Charter thus may legitimate very limited forms of trade union engagement. The judgment contemplates what is usually regarded as collective bargaining, but may also embrace more diluted forms of trade union activity. Trade union activity can be thought of as operating on a scale from left (the weaker end) to right (the stronger end). On that scale are three forms of activity/engagement/voice: (i) the right to make representations to the employer; (ii) the right to be consulted by the employer, and (iii) and the right to negotiate with the employer. Representation occupies the left hand side of the scale, and would be attractive to hostile governments and employers as a diluted form of trade union activity. At its most basic, it is a procedure in which workers representatives would present concerns to the employer. These concerns may be about existing terms and conditions of employment, or they may be about proposals to change these terms and conditions of employment. A right to make representations would not necessarily imply that the representations should be made in a particular way (for example by an independent trade union); nor would it imply a standing procedure within which such representations might be made. More importantly, the right to make representation, even collectively, is a one way process to which the employer may but need not consider or respond to the representations made. In fairness, this is not what the SCC is proposing in Fraser. But we would argue that on one reading of Fraser (paragraphs 101 113) what the majority has done is to plot the Canadian constitutional protection closer to the weaker end than the stronger end of the spectrum referred to above. True, it is not enough that workers should be allowed to make representations (or submissions) to their employer, despite the provisions of the legislation that require the employer only to receive and acknowledge receipt of the workers representations. According to the majority, to fulfil the purpose of reading or listening, the employer must consider the submission, and must do so in good faith; consideration with a closed mind would render listening or reading the submission pointless. 34 32 This is probably the most important and the pivotal sentence of the judgment. 33 Ibid, para 117. 34 Ibid, para 103.
But despite the constitutional gloss painted on the statute by the SCC, this may still be an inadequate form of worker representation/voice. While there may be a duty to consider representations in good faith, as explained in paragraphs 101 113 of the judgment, there is (i) no duty to engage in a dialogue about the representations, (iii) no duty to negotiate about the representations, and (iii) no duty to conclude an agreement relating to the representations. It is thus unclear whether under the statutory scheme (even when infused with constitutional principle), the employer satisfies his or her obligations by considering the representations in good faith, before saying no. True, it may be that more will be implied into the process, following the SCC s observation that Labour tribunals enjoy substantial latitude when applying their constituent statutes to the facts of a given case, 35 and its embrace of a labour board decision where it was said that The Act does not spell out each and every right and obligation of labour and management. This Board is left with the task of applying the Act s general language in the light of an infinite variety of circumstances which may arise. A rigid scheme of regulation is avoided and flexibility is provided although all within the limitations necessary to effectuate the dominant purpose of the Act. 36 But while no doubt helpful, it is not clear how far the tribunal is required to go in developing the statutory obligation, while there must also be some point at which the interstitial role of a labour tribunal is be guided by the parent legislation. And here the responsibilities of an employer under the Labour Relations Act are very different from those under AEPA, the former providing that The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement. 37 35 Ibid, para 112. 36 Adams Mine, Cliffs of Canada Ltd v United Steelworkers of America (1982), 1 CLRBR (NS) 384, pp 399 400. 37 Labour Relations Act 1995, s 15. A collective agreement is defined to mean an agreement in writing between an employer or an employers organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers organization, on the other hand,
The right to consultation is similarly not the same as the right to negotiate. Consultation is a procedure in which the views of workers representatives are solicited by the employer. In the European context at the present time, the employer may be required to consult employee representatives about a range of issues, including changes to existing terms and conditions of employment, 38 or decisions to dismiss for reasons of redundancy. 39 In contrast to the right to make representations, the right to be consulted is a right to a process initiated by the employer on the occasion of a particular event or in particular circumstances. But as traditionally understood (certainly in public law), 40 consultation is a process that falls far short of negotiation, for at a minimum all it requires is that the employer should solicit views (in some cases without an obligation to consider them). 41 Moreover, it is a process that does not necessarily imply that the consultations should take place in a particular way (for example with an independent trade union); nor would it necessarily imply a standing procedure within which such consultations might take place. More importantly, even where there is a stronger duty to consult, this may simply be a process which invites the exchange of views and establishment of a dialogue, 42 the employer not necessarily under a duty to negotiate about the points made by those with whom consultations have taken place. We would argue that consultation in these forms would also be placed closer to the weaker end than the stronger end of the spectrum referred to above. Indeed, consultation of this kind may be no more than the other side of the representation coin developed by the SCC, in the sense that a mandatory duty to consult would require the employer to consider the union s response, and do so in good faith: consideration with a closed mind would render listening or reading the [consultation] pointless. 43 There is, however, a stronger conception of consultation that emphasises three features: (i) the establishment of a dialogue, (ii) the creation of a formal procedure, and (iii) an obligation to seek an agreement (which puts the process closer to a process of negotiation than one of making representations). These are core features of the much maligned EU Information and Consultation Directive, introduced in 2002 to promote information and consultation containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers organization, the trade union or the employees ( s 1). 38 Information and Consultation Directive 2002/14/EC. 39 Collective Redundancies Directive 1998/59/EC. 40 Rollo v Minister of Town and Country Planning [1948] 1 All ER 13 41 See Information and Consultation of Employees Regulations 2004, SI 2004 No 3426, reg 8(1)(d). 42 Ibid, reg 1. 43 Ontario (AG) v Fraser, para 103.
arrangements in the workplace, but with a predictably limited impact. 44 They also stand in sharp contrast to the legislative regime that was upheld in Fraser, even allowing for judicial gloss painted on the statute by the majority, at least in its more cautious form based only on paragraphs 101 113 without the other gloss of paragraphs 40-42. So where the APEA empowers employees (i) to make representations, (ii) which must be received and acknowledged by the employer, and (iii) post Fraser considered in good faith, the Information and Consultation Directive requires that consultation shall take place: (a) while ensuring that the timing, method and content thereof are appropriate; (b) at the relevant level of management and representation, depending on the subject under discussion; (c) on the basis of information supplied by the employer in accordance with Article 2(f) and of the opinion which the employees' representatives are entitled to formulate; 45 (d) in such a way as to enable employees' representatives to meet the employer and obtain a response, and the reasons for that response, to any opinion they might formulate; More importantly, however, the Directive also provides that the consultation must take place with a view to reaching an agreement on decisions within the scope of [certain designated] employer's powers 46. These measures contrast sharply with the corresponding provisions of the AEPA, and the limitations of the latter if its essential core is paragraphs 101 113. But it also reveals the possibilities of the Fraser decision if paragraphs 101 113 are to be read with reference to paragraph 41 in particular. 47 Just as consultation has metamorphosed in EU legislation to a process of negotiation, 48 so it is possible for representation in AEPA to do the same. It does not follow, however, that inflated concepts of representation or consultation are the same as collective bargaining, as objectively defined in legal instruments. 44 See K D Ewing and G M Truter, 'The Information and Consultation of Employees' Regulations: Voluntarism's Bitter Legacy' (2005) 68 Modern Law Review 626. 45 Information and Consultation Directive, above, article 4(2). Article 2(f) defines information to mean transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it. 46 Ibid, article 4(4). 47 For para 41, see note 29 above. 48 See Case C-188/03, Junk v Kuhnel [2005] IRLR 395: It thus appears that Article 2 of the directive imposes an obligation to negotiate (para 43).
(IV) TWO CONCEPTIONS OF FREEDOM OF ASSOCIATION: THIN AND THICK FREEDOM OF ASSOCIATION 49 Having set out the context to Fraser and the ambivalent position of a constitutional right to collective bargaining, we want to explore possible reasons why the confidence of the SCC appears to be faltering. We want to suggest that this is attributable to the gravitational force of a distinctive conception of freedom of association that has taken shape in the philosophical hands of Brian Langille (who has crafted a powerful critique of what he calls the freedom of association mess represented by alternate conceptions of the right). In turn, this has emboldened the judicial counterattack on BC Health Services and is reflected in Rothstein J s powerful dissenting speech in Fraser. Indeed, the positions of Langille and Rothstein J are practically indistinguishable. 50 We might identify this conception of freedom of association as a thin conception. It displays four key characteristics. First, it is formulated at a very high level of abstraction. The freedom to associate is, very simply, encapsulated in the following basic formula: it is the freedom to do with others that which one is at liberty to do as an individual. 51 It is no more and no less than this. According to Langille, this does create space for collective bargaining. Since workers are at liberty to bargain individually, they can do this together with other workers and so bargain collectively. 52 Beyond this, however, there should be no special constitutional protection for collective bargaining (just as there should be no special 49 We adopt the terminology of thick and thin from Eric Tucker s paper on constitutionalisation projects (E Tucker, Labour s Many Constitutions (and Capital s Too) (2012) CLLPJ xx). This is simply to convey the idea that freedom of association encompasses a range of conceptions that protect substantive trade union activity-rights and hence worker voice to a greater or lesser extent depending upon the relative thickness of the conception. At the thin end of the spectrum, freedom of association would simply protect an individual s bare right to join (and not join) a trade union. At the thick end of the spectrum, freedom of association would protect full-blown rights to bargain collectively and to strike. The terminology is (of course) value-laden. 50 But not wholly indistinguishable. For Langille, freedom of association is necessarily an individual freedom (see B Langille, The Freedom of Association Mess: How We Got into It and How We Can Get out of It (2009) 54 McGill LJ 177, 188. This creates permissive space for collective bargaining because collective bargaining is simply individual bargaining done collectively with others through the exercise of freedom of association. For Rothstein J, by contrast, the right to collective bargaining is perforce a group right (though since on Rothstein J s view there is no constitutional protection of group rights there can be no constitutional right to bargain collectively). 51 The leading philosophical elaboration of this liberal conception of freedom of association is set out in Sheldon Leader, Freedom of Association (Yale UP, 1992) 52 Langille, above n 50 at 186-187
constitutional protection for groups devoted to playing snakes and ladders or tiddlywinks). 53 Secondly, freedom of association is a freedom and not a right. Since it is not a right there can be no duties on others (such as employers) for duties are correlative to rights rather than freedoms. One effect of this is that there can be no constitutional duty to bargain on employers. Thirdly, freedom of association is a freedom for individuals not groups. For this reason, groups such as trade unions cannot utilise constitutional provisions such as section 2 (d) to further their collective ends. Fourthly, it is vital that there is no public ranking of the value of different associations in framing freedom of association. This would violate a fundamental norm of neutrality which is a precondition of constitutional legitimacy. There is no necessary antipathy towards activities such as collective bargaining and strike action. However, these activities should be implemented and regulated through legislation enacted in the ordinary democratic process. Unlike the individual citizen s freedom to form and to join trade unions, which are matters of constitutional concern, collective bargaining and strikes would seem, on this analysis, to lie beyond the formal constitutional horizon in the realm of everyday politics. 54 It should be evident that we prefer a thick conception of freedom of association that encompasses special constitutional activity-rights for trade unions (such as a constitutional right to collective bargaining). It displays four contrasting characteristic elements. First, thick freedom of association cannot be reduced to a simple formula which can be used to yield its constituent elements through an a priori calculus. Rather, it is a concrete rather than an abstract constitutional freedom. Accordingly, it acquires its specific shape through a judicial appreciation of specific labour relations histories and the special significance of collective bargaining in those histories, 55 it would reflect the growing constitutionalisation of a fundamental right to bargain collectively in international and regional fora such as the ILO and the ECtHR, 56 and it would observe the need to respect basic international human rights norms as a threshold condition for the decency of national legal systems. 57 In this way, we only come to know thick freedom of association its 53 There are obvious parallels here with Hayek s neo-liberalism, and his defence of the position that there should be no special privileges (conferring immunities from common law liabilities) for trade unions enabling them to operate within a functioning system of collective labour relations. See F A Hayek, The Constitution of Liberty (1960) 268-269 54 For a philosophical defence of thin freedom of association, see H Collins, Theories of Rights as Justifications for Labour Law, in G Davidov and B Langille (eds), The Idea of Labour Law (OUP, 2011) 137 55 Though we fully accept Eric Tucker s cautionary comments on the uses and misuses of historical evidence in this context: E Tucker, The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada (2008) 61 Labour/Le Travail 151 56 On which, see P Macklem, The Right to Bargain Collectively in International Law: Workers Right, Human Right, International Right?, in P Alston (ed), Labour Rights as Human Rights (2005) 61 57 This is acknowledged in Rawls later work on the law of peoples, where he observes that human rights set a necessary, though not sufficient, standard for the decency of domestic political and social institutions. In doing so they limit admissible domestic law of societies in good standing in a reasonably just Society of Peoples (J Rawls, The Law of Peoples (1999) 80).
character and its outer limits through its being in the world of concrete social and legal relations. 58 Secondly, it would characterise these activity-rights as fully-fledged rights rather than mere liberties. This does not mean that a constitutionalised duty to bargain is a necessary correlative of a fundamental right to collective bargaining (though it may often feature in the range of corresponding duties). This assumption betrays a tendency in Langille s work to fail to see beyond Hohfeld s system of thought. Drawing upon normative theories of rights, however, a fundamental right to collective bargaining is associated with a duty on the State to promote its effective realisation for workers. Thirdly, while thick freedom of association is agnostic on the question of whether collective bargaining must perforce be a group right, it acknowledges that it may be so characterised. Further, there is no ethical problem with configuring this group right as a fundamental constitutional right. Finally, thick freedom of association proceeds from the assumption that some activities, those that are especially worthwhile aspects of our public culture or otherwise display value in their practise, attract special constitutional protection. Collective bargaining is a public good of such significance that it properly rests at the very centre of freedom of association. The deep problem in Fraser is the growing credibility of thin freedom of association. We want to demonstrate that its intellectual credibility is rather lacking. Before we proceed further, we should state clearly a modesty disclaimer for what follows. The supporters of the thin conception in Fraser have based their philosophical defence of it on the back of a stinging critique of the shortcomings of the alternative thick conception. In the remainder of the article, we will demonstrate that this philosophical critique is deeply flawed. Having identified those flaws, we hope (indirectly) to bring the appeal of the thick conception into clearer view. The critique mounted by Langille and Rothstein J is based upon three lines of attack. First, the thick conception confuses freedoms and rights. Freedom of association is a freedom and, as such, it is not correlative to duties on others. Since a constitutionalised right to bargain for trade unions must be correlative to a constitutionalised duty to bargain on employers, it cannot be derived from freedom of association. 59 Secondly, the thick conception depends upon the view that groups such as trade unions are legitimate bearers of constitutional rights. As a normative matter, 58 Though there is insufficient space to develop the point, we see this as a serious flaw in Collins use of a Rawlsian original position methodology to defend a thin conception of freedom of association (Collins, above n 54). Collins postulates a veil of ignorance as a method for determining which labour rights might count as fundamental rights. However, Rawls himself allows for a progressive lifting of the veil of ignorance as basic liberties acquire progressively more determinate content through a constitutional convention and subsequent adjudication (see J Rawls, Political Liberalism (1996, Columbia) Lecture VIII. In this way, the Rawlsian methodology for determining the character, content and inter-relationship of basic liberties is much more contextual than Collins use of it might suggest. 59 Langille, above n 50 at 199
however, only individuals (and never groups) possess the fundamental moral significance necessary to be fully-fledged subjects of constitutional law. 60 Thirdly, the thick conception identifies trade unions and their collective activities as aspects of special significance in framing the constitutional contours of freedom of association. This violates a fundamental norm of neutrality in singling out some associations trade unions for heightened constitutional protection. In the view of Langille and Rothstein J, all associations should be equal in the sight of the Constitution. 61 Each of these three arguments is powerfully made. However, when subjected to careful scrutiny, each of the arguments is faulty. While this may be some way short of a conclusive justification of thick freedom of association, hence the modesty disclaimer, it certainly leaves the thin conception in search of a persuasive supporting argument and the thick conception in search of a persuasive objection. (V) THE CRITIQUE OF THICK FREEDOM OF ASSOCIATION: UNTANGLING THE FREEDOM OF ASSOCIATION MESS (A) FREEDOM OF ASSOCIATION: IS IT A LIBERTY OR A RIGHT? According to its critics, a major philosophical flaw with the thick conception is its sloppy use of juristic concepts. Freedom of association is, well, a freedom or liberty. The right to collective bargaining is, by contrast, a right. Since these two conceptions of liberty and right are distinct from each other indeed irreducibly so it is an error to think that a right (to collective bargaining) can be derived from a liberty (to associate). This distinction between liberties and rights is central to the jurisprudential work of Wesley Hohfeld. 62 Hohfeld was a conceptual hygienist, and to understand the critique of the thick conception a brief detour into Hohfeld s thinking is necessary. His analytical work sought to disentangle the distinct fundamental legal conceptions that were often confused or elided when engaged in discourse about juristic relationships between parties. Most importantly, the elision of liberty and right is commonplace but profoundly mistaken. Hohfeldian liberties concern the freedom of citizens to act (or not act) in certain ways. By contrast, Hohfeldian rights (or, in Hohfeld s own terms, claim-rights ) are always strictly correlative to duties on other citizens to act (or not act) in certain ways. As such, rights (unlike 60 Ibid 187 61 Ibid 185 62 W Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1964, Yale UP)
liberties) impose limitations upon the actions of other citizens through their correlative duties whether these be negative duties to refrain from certain kinds of interference or positive duties to assist, support, or otherwise engage with the right-holder. 63 According to Langille it represents seriously muddy thinking to purport to derive a right to bargain collectively (which, according to Langille, must be correlative to a constitutionally mandated duty on employers to bargain in good faith) from a liberty to associate. While there is no direct reference to Hohfeld in Rothstein J s speech, the imprint of the Hohfeldian framework is also clearly present. Langille puts the argument thus: The basic idea is this: as with other freedoms, like freedom of speech, of religion, or of thought, the freedom does not and should not mean that anyone else has a duty to listen or even to hear. Let alone to converse. Let alone to agree. This is equally true for association in all its forms, including collective bargaining...to conceive of freedom of conscience, belief, religion, expression, or association as Hohfeldian rights (that is, as true rights that I have, which impose corresponding duties upon others to think or to act in a certain way) is to miss the point of such freedoms. 64 Having wielded the Hohfeldian knife, it is important that the distinctions are understood and applied correctly. We think that this argument is based upon three fundamental errors. The first two errors are rooted in misunderstandings of the Hohfeldian schema. The third error is rooted in a failure to look beyond Hohfeld s theory of rights and explore other possible theories of rights. Once these errors are exposed, this aspect of the critique of the thick conception loses all plausibility. (i) Hohfeld: Conceptual not Normative The first error is contained in Rothstein J s speech. The gist of the problem lies in a failure to be sensitive to the limitations of Hohfeld s work, limitations that Hohfeld himself was scrupulous in observing. Hohfeld was never concerned to argue which liberties or claim-rights ought to be recognised in a legal system. Rather, he wanted us to be clear about what was involved, conceptually speaking, in asserting claim-rights and liberties. Which liberties or claim-rights 63 For a sound and pithy encapsulation of Hohfeld s thinking, see Langille (above n 50) at 198-204. In addition to liberties and claim-rights, Hohfeld also elucidated powers and immunities in his scheme of juristic relations. The detailed distinctions need not detain us here. 64 Langille, above n 50 at 199-201
ought to be recognised was always a question of politics or ethics, never a question of logic. To see this slippage at work, consider Rothstein J s reflections on freedoms and rights: A freedom exists to protect a sphere of autonomy, an area within which the individual will encounter no obstacles. A right, on the other hand, exists to provide an individual with a claim to some specific thing. Generally, a freedom can be described as a right only if it is recognized that the right is negative in character, that is, only if it is described as an entitlement to be free of restriction or prohibition. 65 Since a right to collective bargaining is positive in character, correlative to positive duties to do certain things (to bargain collectively in good faith), this is incompatible with freedom of association. This discloses a basic confusion, however. So-called negative rights, correlative to duties to refrain from doing certain things, are nevertheless rights rather than liberties. Very often, and as Langille s perceptive use of Hohfeld s work makes clear, 66 liberties will be protected from interference by a cluster of negative rights that mark out a protective boundary around the freedom. 67 Yet these negative rights remain conceptually distinct from the liberty that they seek to shield from interference. Furthermore, this is a vital distinction to grasp. As Nigel Simmonds has observed, in a situation where a negative right protects a freedom against a particular kind of interference, the claim-right cannot be deduced from the liberty; whether or not such a claimright should exist is a matter of justice and policy, not of logic. 68 This point is so vital because it dispels any illusion that freedoms and negative rights are somehow logical counterparts. Such an impression is conveyed by Rothstein J s judgment and it is a false one. The particular rights (negative or positive) associated with a given liberty reflect normative choices rather than logical inferences. This is an important point. Other theorists have observed that a preference for negative rights (and correlative duties of non-interference) such as is contained in Rothstein J s speech is often a feature of those with a bent toward libertarianism. 69 For libertarians, the measure of freedom is the absence of interference by other persons with one s choices and actions, hence the correlation with duties of non-interference. This has the further advantage of minimising restrictions on other persons freedom of action, for a negative duty to refrain from doing an action is less destructive of remaining available options than a positive duty to undertake an action. Whatever our concerns with libertarianism as a theory of freedom, that is 65 Para 191 66 Langille, above n 50 at 202 67 For further perceptive discussion of the protective role of negative rights in relation to liberties, see N Simmonds, Law as a Moral Idea (2007) 104-109 68 N E Simmonds, Central Issues in Jurisprudence (3 rd ed, 2008) 297 69 Leif Wenar, Rights entry at http://plato.stanford.edu/entries/rights/
not the point. The point is that political choices should not be presented as if they were part and parcel of the conceptual grammar of juristic relations. As Hohfeld was acutely aware, his scheme tells us how to think clearly when asserting juristic claims. Deciding which rights we should recognise is an ethical and political judgement and this was no part of Hohfeld s professional philosophical concern. In fairness, Langille s use of Hohfeld is sensitive to this distinction. 70 According to Langille, the constitutionalisation of a right to collective bargaining would be crazy ; this is because to think in terms of claim-rights is to miss the point of such freedoms. To think in this manner would not simply delimit the freedom wrongly; it would constitutionalize the very opposite of what we wish to preserve. 71 If we fail to grasp this, says Langille, then we have missed a very large point. 72 Let us assume, then, that it is a concern for Hohfeldian liberty that lies at the heart of constitutional freedoms. Does it not then follow that employers have a constitutionally protected freedom or liberty not to engage in collective bargaining? If so, does it not then follow that any statutory duty to bargain is a prima facie violation of the employer s constitutional freedom of association since a liberty denotes an absence of such duty? It is unclear whether Professor Langille is comfortable with the conclusion that statutory bargaining duties are prima facie unconstitutional. It seems to us, however, that this would reignite constitutional controversies over the terrain of labour relations statutes that have been dormant for nearly a century, 73 and gives justification to the re-opening of that controversy most recently by the Supreme Court of Ireland in the Ryanair case. 74 As with Rothstein J, it is a libertarian notion of negative freedom that perhaps unintentionally lies at the heart of Langille s conception of constitutional law. Though the defensibility of libertarianism as a political theory of freedom raises large questions too vast to be addressed here, it is characteristic of the neoclassical genre in labour law scholarship. 75 In our view, other political conceptions of freedom provide a more attractive basis for theorising labour rights, such as capability theory, 76 freedom as non-domination, 77 or 70 Langille above n 50 at 199 71 Ibid 201-202 72 Ibid 203 73 This was a particular feature of the early life of the US Wagner Act. Here the constitutional battle centred on the commerce clause in the US Constitution rather than the employer s freedom of association: see P H Irons, The New Deal Lawyers (1982). The constitutionality of the Act was upheld in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937) 74 Ryanair v Labour Court [2007] IESC 6 75 For the classic work in this genre, see RA Epstein, In Defense of the Contract at Will (1984) 51 University of Chicago Law Review 947 76 See, S Deakin and A Koukiadikis, Capability Theory, Employee Voice and Corporate Restructuring: Evidence from UK Case Studies (2012) CLLPJ xx. Langille s position here is especially puzzling given that in other contexts Langille has been a passionate advocate of Amartya Sen s capabilities-based account of human freedom. See, for
positive freedom as an aspect of personal autonomy. 78 In each case, the employer s freedom to impede collective bargaining would not be viewed as the symmetrical mirror image of the trade union s freedom to bargain collectively, as with the libertarian conception. These alternative conceptions of freedom certainly cannot be dismissed out of hand as crazy. (ii) Rights as molecules rather than atoms A second error can be identified in Langille s deployment of Hohfeld s work. In drawing a sharp distinction between freedoms and rights, Langille takes nomenclature seriously. For Langille, freedom of association is what it says it is on the tin: a freedom. Since freedoms (or, in Hohfeldian terms, liberties) are conceptually distinct from rights, the right to collective bargaining (and its correlative duty to bargain in good faith) is not derivable from freedom of association. Once again, however, we need to be clear about what it was that Hohfeld was trying to do in explicating his distinctions. As Simmonds work has emphasised, Hohfeld was interested in how to analyse juristic relations between two persons, X and Y. 79 That is why for each jural conception such as right, privilege, power and immunity there is a corresponding correlative : duty, no-right, liability, disability. 80 X s right is Y s duty, X s privilege is Y s no-right, and so forth. Consequently, it is mistaken to think that Hohfeld was attempting to affix reductive descriptions to legal phenomena such as the right of ownership in property law, or freedom of speech in constitutional law, or indeed freedom of association. Rather, he was concerned to tease apart the distinctive legal relations obtaining between two different persons that were collapsed into each other in an undifferentiated way when discussing familiar legal phenomena. The paradigm example of such is the right of ownership in property law. 81 In fact, Hohfeld himself recognised that many so-called rights or freedoms are not unitary entities, but are instead complex amalgams of liberties, claim-rights, powers, and immunities that needed to be disentangled as a prelude to lucid analysis. example, B Langille, Imagining Post Geneva Consensus Labor Law for Post Washington Consensus Development (2010) 31 Comparative Labor Law and Policy Journal 523 77 Philip Pettit has offered the leading philosophical account of this conception of freedom: see P Pettit, Republicanism: A Theory of Freedom and Government (1999). For applications of Pettit s work in the field of labour law, see, for example, V Mantouvalou, Human Rights and Unfair Dismissal: Private Acts in Public Spaces (2008) 71 Modern Law Review 912-939; A L Bogg, The Democratic Aspects of Trade Union Recognition (1999) 144-154 78 Joseph Raz has offered the leading philosophical account of this autonomy-based account of freedom: see J Raz, The Morality of Freedom (1986). Raz s work has been developed in the labour law field in H Collins, Justice in Dismissal (1992). See also Bogg, above n 77 at 107-114 79 Simmonds, above n 68 80 Hohfeld, above n 62 at 36 81 Ibid 65-114