Conceptualizing Collective Bargaining Under the Charter: The Enduring Problem of Substantive Equality

This article has three goals. First, it attempts to understand how the Supreme Court conceptualizes the constitutionally protected right to bargain collectively in the Health Services and Support - Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27. It concludes that the Court has adopted a purely formal or procedural approach to collective bargaining. Although this conception may promote democratic deliberation by requiring governments to consult with the unions representing government employees who will be adversely effected by legislation that interferes with collective agreements, the article concludes that it is disconnected from a broader, deeper, and more secure normative base upon which to ground labour rights. Second, the article argues that the Supreme Court's dismissive treatment of the equality argument in the B.C. Health Services case is not only inconsistent with its decision in Newfoundland (Treasury Board) v Newfoundland Association of Public Employees (NAPE), [2004] 3 SCR 381, it both reflects and promotes an idea of equality that is directed at fighting stereotypes to the exclusion of fostering substantive equality. Third, the article suggests that constitutional litigation in the labour context supports and reinforces partisan politics by promoting a form of aggressive adversarialism that is antithetical to a principled approach to developing labour policy for an economy for which the prevailing form of industrial pluralist labour law no longer fits.