Legal and Social Affairs Division
On 16 January 2015, the Supreme Court of Canada released its ruling on the right of members of the Royal Canadian Mounted Police (RCMP) to engage in collective bargaining. This decision is the latest contribution to the debate about the nature of the RCMP, which has gone on almost since its founding in 1873 as the North-West Mounted Police.
The debate concerns whether the RCMP plays a distinct role as the national police force that needs a special (non-unionized) labour relations regime, or whether it is a police service like the others in Canada, which have collective agreements in place.
For many years, federal government policy prohibited outright the unionization of RCMP members. From 1918 to 1974, an Order-in-Council forbade any union-related activity. This stemmed from a fear that organizing RCMP members into an employee association would result in “divided loyalty” or conflict of interest between members’ allegiance to their fellow workers and their required obedience to superior orders.
This concern was particularly pronounced in relation to the RCMP’s role in quelling labour unrest. The federal government felt that RCMP members might refuse to obey the command to subdue labour uprisings, or to fill in for a striking local police force, if their allegiance to their fellow employees came into conflict with such a command.
‘Nature of their duties’
In 1965, a report from a committee established to study potential collective bargaining in the federal public service recommended excluding the Armed Forces and RCMP from such bargaining. The report said this was “because of the nature of their duties and the fact that their conduct is subject to military or similar codes of law and discipline.”
In 1967, Parliament established for the first time a statutory labour relations regime, now the Public Service Labour Relations Act (PSLRA), applicable to members of the federal public service. Members of the RCMP were excluded from it.
As an alternative to a union, RCMP management in 1974 established the Division Staff Relations Representative Program, now the Staff Relations Representative Program (SRRP).
Under the SRRP, RCMP members elect representatives to raise labour relations issues, excluding wages, with management. It is the only form of employee representation recognized by management. While there are consultations between members’ representatives and management on human resources issues, there is an understanding that the final word rests with management.
In May 2006, a constitutional challenge was initiated by two private associations of RCMP members. It sought a declaration that the combined effect of excluding RCMP members from the application of the PSLRA and imposing the SRRP as a labour relations regime unjustifiably infringed members’ freedom of association.
Degree of choice and independence
The case finally reached the Supreme Court of Canada in Mounted Police Association of Ontario v. Canada (Attorney General). The majority of the Court held that the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (Charter) protects a meaningful process of collective bargaining. This process provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests.
The Supreme Court said that such choice and independence should allow RCMP members to “meaningfully” bargain collectively in a way that helps them meet management on more equal terms than they can do individually. The Court did not see how or why the RCMP is materially different from police forces that have the benefit of collective bargaining regimes providing basic bargaining protections.
As such, the total exclusion of RCMP members from meaningful collective bargaining could not be justified. The Court also found that the SRRP was not independent of RCMP management. It is, in fact, part of the RCMP’s management organization and is a representation system that RCMP members did not choose and do not control.
These findings led the Court to conclude that the exclusion of members of the RCMP from collective bargaining, and management’s imposition of a non-unionized labour relations regime, were unconstitutional infringements of the freedom of association guaranteed by section 2(d) of the Charter.
The Court, therefore, struck down the provision of the PSLRA that excluded RCMP members, but it suspended this declaration of invalidity for 12 months. The suspension affords Parliament an opportunity to respond to the ruling, if it so chooses. The SRRP was also held to be invalid, as it failed to achieve the balance between employees and employer that is essential to meaningful collective bargaining.
Guarantee of a process
The government is not required to respond in any one particular way to the Supreme Court’s decision; freedom of association includes a right to collective bargaining, but this is a guarantee of a process rather than an outcome or a particular model of labour relations. What is required to permit meaningful collective bargaining varies with the industry culture and workplace in question.
Providing employees with choice and independence in the way they are represented does not necessarily require labour relations to be adversarial; an employee association could decide to work in a collaborative, rather than an adversarial, fashion with an employer.
Ultimately, as interpreted by the Court, section 2(d) of the Charter gives Parliament much leeway in devising a scheme of collective bargaining that satisfies any special demands of the RCMP.
It remains to be seen what, if any, implications this decision has for labour relations beyond the RCMP. It may be that the case is taken as a unique response to a unique police service.
Alternatively, the clarification by the Supreme Court that freedom of association entails a right to engage in a process of collective bargaining could be seen as strengthening the hand of organized labour. One could argue that it makes it more difficult for employers to impose programs such as the SRRP, or otherwise try to prevent the formation of independent employee associations.