Health+Services+and+Support+Facilities+Bargaining+Association+v.+British+Columbia

· BC govt experienced significant increase in the demand for health care and struggled to provide health services to its citizens. · In response to this ‘health care crisis’, it enacted the // Health and Social Services Delivery Improvement Act // ·  Part 2 of the Act gave health care employers greater flexibility to organize their relations with their employees as they see fit, and in some cases, to do so in ways that would not have been permissible under existing collective agreements and without adhering to requirements of consultation and notice that would otherwise obtain. · It invalidated important provisions of collective agreements then in force, and effectively precluded meaningful collective bargaining on a number of specific issues · no meaningful constultation with unions was done before passage of act. ·  the appellants (unions and members of the unions representing the nurses, facilities, or community subsectors) argue Part 2 of the Act violates s.2d and s.15 of the Charter __ Re: s.2d __ · s.2d Freedom of assoc. includes a procedural right to collective bargaining! (Rejection of past court rulings) à because: · purpose of Charter guarantees and broad language of s. 2(//d//) are consistent with a measure of protection for collective bargaining · the right to collective bargaining is neither of recent origin nor merely a creature of statute… long been recognized as a fundamental Canadian right which predated the //Charter//. · Canada has ratified international docs that recognize right to coll. bargaining so it should be presumed that Charter grants the same kind of protection · consistent with values underlying the //Charter// and the purposes of the //Charter// as a whole…reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the //Charter// Content of s.2d right to collective bargaining: · does not guarantee the particular //objectives// sought through this associational activity but rather the //process// through which those goals are pursued · right to present demands to employers collectively and discuss __ Limits of Legislative constraint on right: __ · __ Intent __ to interfere with collective bargining right not needed to prove breach of s.2d; enough if the __effect__ of state action is to __substantially interfere__ with the activity of collective bargaining. · “**substantial interference**” means the intent or effect must seriously undercut or undermine the associational activity of workers to address workplace issues · **TEST for whether govt measure “substantially interferes with collective bargaining right:** (1) Does the measure affect aspects that are really important to the collective bargaining process? Important affects on the capacity of the union members to come together and pursue collective goals in concert? à If NO, the measure does not violate s. 2(//d//) and the employer may be under no duty to discuss and consult (2) In what manner does the measure impact on the collective right to good faith negotiation and consultation?. à If the measures preserve a process of consultation and good faith negotiation, it’s not a breach of s.2d [**Only where the matter is both important to the process of collective bargaining and has been imposed in violation of the duty of good faith negotiation will s. 2(//d//) be breached] __ Content of duty to ‘bargain in good faith’: __ ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;">  duty to engage in meaningful dialogue, to exchange and explain their positions and to make a reasonable effort to arrive at an acceptable contract. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> does NOT impose on the parties an obligation to conclude a collective agreement, nor does it include a duty to accept any particular contractual provisions. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Involves a contextual, case-by-case analysis à regard must be had for the circumstances surrounding adoption of the legislative provisions. Situations of exigency and urgency may affect the content of the duty; Different situations may demand different processes and timelines. __ Some of the provisions in question substantially interfere with right to collective bargining by: __ ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> disregarding past processes of collective bargaining; undermining future processes of collective bargaining; deal with matters central to freedom of assoc. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Govt facing a situation of exigency=not an excuse to virtually deny s. 2(//d//) right to a process of good faith bargaining and consultation. __ s.1 Analysis __ ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> constitutes a pressing and substantial objective; and is rationally connected; BUT **fails the minimal impairment** **stage** ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> A range of options were on the table, but the government presented no evidence as to why this particular solution was chosen and why there was no meaningful consultation with the unions about the range of options open to __ Re: s.15 __ ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> No violation because the differential and adverse effects of the legislation on some groups of workers “relate essentially to the type of work they do, and not to the persons they are”. Nor does the evidence disclose that the Act reflects the stereotypical application of group or personal characteristics. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Doesn’t agree with the way that the “substantial interference” test has been framed by majority à Argues should 1st consider good faith consultation and interference in the process of negotiation; then turn to step two and consider whether issues are significant. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Applying that analysis; finds that while ss. 4, 5, 6(2) and 9 violate s.2(d), they are all justified. Only s. 6(4) is not saved under s.1.
 * Health Services and Support – Facilities Subsector Bargaining Assn. v. BC **, 2007 SCC 27
 * Facts: **
 * __ Issues __** : Does Part 2 of the Act violates. 2d and s.15 of charter? ii) Saved by s.1?
 * __ Held: __** i) YES to s.2d; NO to s.15 ii) NO
 * Analysis: **
 * [Per McLachlin C.J. **** and Bastarache, Binnie, LeBel, Fish and Abella JJ] **
 * [Deschamps J.-- (dissenting in part)] **