Court rules Harper government's 2009 wage restraint legislation constitutional | National Union of Public and General Employees

Court rules Harper government's 2009 wage restraint legislation constitutional

Ruling based on the 2011 Supreme Court of Canada Fraser decision which provided a narrow and unworkable interpretation of the right to collective bargaining. 

Toronto (9 August 2012) – Ontario's highest court has ruled that the 2009 wage restraint legislation passed by the Harper government is constitutional. Its decision relied heavily on the April 2011 Supreme Court of Canada (SCC) in its 2011 Fraser decision, which denied collective bargaining rights to Ontario's 80,000 agricultural workers. The Fraser decision was a backward step for labour rights in Canada with its very narrow and unworkable interpretation of the right to collective bargaining.

Bill C-10, the Expenditure Restraint Act (ERA), which was a part of the 2009 federal budget implementation bill, imposed caps on wage increases for some 400,000 federal government employees retroactive to 2006 and prohibited any additional remuneration such as allowance, bonus, differential or premium pay and increases brought about as a result of classification reviews. In several cases, the legislation overrides previously negotiated collective agreements containing wage increases above the imposed wage caps.

The ruling is the first of several pending decisions to reach an Appeal Court arising out of the 2009 wage restraint legislation. The case was brought before the Court by the Association of Justice Counsel (AJC), the union representing about 2,700 federal prosecutors and other government lawyers. AJC argued the act took away of its members' constitutionally guaranteed right to bargain. The union had already been engaged in collective bargaining with the federal government for over two years by the time the ERA came into force.

Ruling on behalf of the three-judge panel, Justice J.A. Sharp found that the Charter rights of AJC members were not violated as a result of these negotiations. “Further negotiation may be possible after the constitutionally protected phase of the process of bargaining has concluded, but that possibility — a remote one on the facts of this case — does not expand the scope of the protected right,” noted Justice Sharp.

Most of the OCA ruling was devoted to restating the SCC Fraser decision. It noted the SCC's restrictive conclusion that "collective bargaining under section 2(d) protects only the right to make collective representations and to have those collective representations considered in good faith."

“Fraser makes clear that s. 2(d) has limits: it does not guarantee any dispute resolution process after the parties have reached an impasse and it does not guarantee any particular outcome. In my view, the validity of the ERA must be assessed on the basis of whether, at the time it was enacted, the parties had had the opportunity for a meaningful process of collective bargaining.”

“I conclude, accordingly, that the AJC has failed to demonstrate that the ERA infringed the rights of its members to engage in a meaningful process of collective bargaining and that the claim under s. 2(d) must fail.”

In June of this year, the OCA also relied on the restrictive SCC Fraser decision to deny collective bargaining rights to RCMP officers

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