View cases - Stewart McKelvey

Health Services, contradicts established accounts of the history of labour relations in Canada andhas recently been the subject of intense academic criticism. While the duty to bargain in goodfaith may be a fundamental precept of the Wagner model of collective bargaining, it is not afundamental precept of collective bargaining as it was understood before introduction of theWagner Act or as it is still understood today in many parts of the world.Nor does international law support constitutionalizing collective bargaining rights.2011 SCC 20 (CanLII)In Health Services, the majority relied on the proposition that collective bargaining is an integralcomponent of the freedom of association under international law. The majority relied inparticular on ILO Convention No. 87. In doing so, it committed two errors. While Canada hasratified ILO Convention No. 87, that Convention deals only with freedom of association anddoes not at any point specifically discuss collective bargaining. The majority also conflated twodistinct ILO Conventions by citing Convention No. 87 but using words from Convention No. 98.Canada has not ratified Convention No. 98 and has no obligations under that Convention. Evenif Convention No. 98 were applicable to Canada, Health Services would still have erred inrelying on that Convention to constitutionalize a version of collective bargaining that includes aduty to bargain in good faith. While Convention No. 98 provides protection for a process ofcollective bargaining, it conceives of collective bargaining as being a process of “voluntarynegotiation” that is fundamentally distinct from the model of collective bargaining incorporatedin the Wagner model. Convention No. 98 does not contemplate the imposition of a duty onparties to bargain in good faith.