Freedom of Association and Collective Bargaining: A Comparative Study of Canada and the Approaches of the ILO

Abstract

In this Paper the right to bargain collectively and the implications of the constitutional right of Freedom of Association is reviewed in the example of Canada. Recent decisions of Canadian courts approached differently in articulating the right to bargain collectively and the scope of its protection. After a long period of restrictive interpretation of the Freedom of Association by the Canadian courts and a general reluctance to address the constitutional impacts on collective bargaining, the Supreme Court of Canada (SCC) finally constitutionalized the process of collective bargaining and confirmed this precedence in further cases. In these complex cases the decisions have one thing in common. They referred inter alia to International Law to support its reasoning. This paper focuses primarily on the influence of the International Law and contrasts it with the Canadian industrial relation system as expressed in the Wagner Act Model. Further, analysing the Canadian case law gives the answer whether collective bargaining with the duty to bargain in good faith can be protected by the Freedom of Associacion.