The State Giveth and Taketh Away: Public Sector Labour Law, the Legitimacy of the Legislative Override Power and Constitutional Freedom of Association in Canada

Abstract

This article investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers’ legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available. Judicial Deference; Public Sector Labour Law; Legislative Override; Freedom of Association; section 2(D); The Canadian Charter of Rights and Freedoms; The Expenditure Restraint Act, Pre-Legislative Consultation; Legitimacy; Special Interests