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- Title
Convergence Revisited: Canadian and European Judicial Approaches to Freedom of Association and their Implications for a Constitutional Right to Strike.
- Authors
Barnacle, Peter
- Abstract
In this paper the author charts what he sees as the remarkable parallels in the paths followed by the Supreme Court of Canada and the European Court of Human Rights in their developing jurisprudence on freedom of association in relation to trade union rights. Those parallels first became evident about a decade ago when, within the space of less than a year, Canada's Supreme Court issued its decision in Dunmore on the scope of freedom of association under the Charter of Rights and Freedoms, and the European Court released its decision in Wilson and Palmer dealing with the scope of that freedom under the European Convention on Human Rights. The author notes that each court, independently of the other, looked to comparable sources of international law in espousing a broader interpretation of freedom of association than it had done previously -- an interpretation that accepted a collective dimension as part of the protected scope of union activity. More recently, the author argues, this trend toward convergence has been strengthened by two landmark cases: the Supreme Court of Canada's decision in B.C. Health and the European Court's decision in Demir and Baykara. Each court rejected its earlier, more restrictive approach to freedom of association and, placing heavy reliance on international labour law, concluded that the principles surrounding freedom of association had evolved to such a degree that collective bargaining should be recognized as an essential element of the freedom. The author anticipates that the movement toward convergence on the basis of international consensus may well continue in the context of the right to strike. Given that the European Court has already held in several cases that this right is protected by freedom of association, the only issue being whether the impugned limitations on the right were justified, the author posits that the Supreme Court of Canada may move in a similar direction and acknowledge the link between collective bargaining and the right to strike.
- Subjects
CANADA; LABOR laws; FREEDOM of association; RIGHT to strike
- Publication
Canadian Labour & Employment Law Journal, 2012, Vol 16, Issue 1, p419
- ISSN
1196-7889
- Publication type
Article