View cases - Stewart McKelvey

understanding of freedom of association actually is, does not rehabilitate the flawed historicalanalysis in Health Services.[246] In light of the consistent academic criticisms, I cannot accept the majority’s assertionin Health Services that the Wagner model statutes did not create a modern right to bargaincollectively but only “afforded it protection” (para. 25). While the legal freedom to enter intovoluntary collective negotiations may have been a fundamental freedom prior to legislation2011 SCC 20 (CanLII)based on the Wagner Act, these statutes did in fact constitute a substantial innovation over thestatus quo ante with respect to various labour rights, including the duty of employers to bargainin good faith.(3) International Law Does Not Support Constitutionalizing CollectiveBargaining Rights[247] The third proposition the majority relied on in Health Services was that collectivebargaining is an integral component of the freedom of association under international law. Themajority relied in particular on ILO Convention (No. 87) concerning freedom of association andprotection of the right to organise, 68 U.N.T.S 17 (“Convention No. 87”), in support of theposition that collective bargaining is protected under international law. In doing so, it committedtwo errors.[248] First, in discussing protection for collective bargaining under international law, themajority conflated two distinct ILO Conventions. While Canada has ratified ILO ConventionNo. 87, that Convention deals with freedom of association and does not at any point specifically