The Collective Representation of Precarious Workers: Contemporary Evolution and Challenges
In 2001, 2007 and 2011 the Supreme Court of Canada’s decisions recognized, step by step, the right to bargain collectively as a part of the constitutionally enshrined freedom of association in the Canadian Charter of Rights and Freedoms. These Supreme Court decisions have the potential to create a wave of optimism among workers with low job security because they have created a great opportunity for these workers to improve their collective representation. The purpose of this article is to analyze the collective representation of precarious workers in view of these new developments. Our analysis shows that legislators have not made any significant effort to ensure that workers have more access to collective representation and collective organizations, once a pillar for the development of collective action in the middle of the 20th century, have not done so either. The synergy between these two sources of worker support no longer achieves this objective. In fact, during the last few years, it has been the courts, particularly the Supreme Court of Canada, which have created the components for a better collective representation of workers. The article begins with an emphasis on how legislation and collective action are obstacles to improving collective representation for workers with low job security, whereas the courts recognize that workers are on the vulnerable side of the employment relationship and that some workers are more vulnerable than others. As a result, the courts tend to decide in favour of better protections for workers. Moreover, in 2007 and 2011 the Supreme Court of Canada decided that the freedom of association protections in section 2(d) of the Charter included the right to collective bargaining. But the Court declared that protection for collective bargaining rights is not sufficient. These rights need an effective statutory framework. The Court added that it was not constitutionalizing “a particular model of labour relations, nor ... a specific bargaining method.” This precision has shaped litigation in Quebec, where it has been an ideal breeding ground for creating new forms of collective representation for those workers who have less capability to bargain collectively and require statutory support for an effective protection for the right to organize and bargain collectively. The article continues by giving an account of two litigations that implement the lessons of the Supreme Court of Canada in the case of migrant agricultural workers and home care workers.