The Americas / Government Lawyers in British Columbia Going to Court For Right to Organise by Gareth Morley KC

According to the Supreme Court of Canada, the rule of law means everyone, including the government, is under the law and that the executive branch of government can only act when it has a legal power to do so. In Canada, independent courts enforce this principle. Although, the vast majority of actions that governments take never see the inside of a court room – that is where government lawyers come in. It is the role of government lawyers to make sure the state is only doing what it is legally allowed to do. That job is usually behind the scenes, because it is important that governments can get confidential legal advice.

In Canada’s western province of British Columbia (“BC”), a group of government lawyers is testing what the rule of law requires in a very public way. They are bringing a case against the provincial government to determine whether the Public Service Labour Relations Amendment Act, 2023 (Bill 5) violates their right to “freedom of association”. “Freedom of association” is one of the fundamental freedoms protected by the Canadian Charter of Rights and Freedoms, an integral part of Canada’s Constitution, the highest law in the country. In a labour context, Bill 5 guarantees the right of employees to meaningfully join together to organize and form associations in the pursuit of collective workplace goals and includes a right to bargain collectively.  

 The British Columbia Government Lawyers Association

The BC Government historically said it would be “inappropriate” for government lawyers to unionize and that they could not legally do so because they are excluded by the Public Service Labour Relations Act. However, in 2015, Canada’s highest court ruled in a series of cases that workers have the right to collectively bargain their salaries and working conditions, as well as the right to strike if their chosen union cannot agree with their employer about these issues.

Government lawyers in British Columbia have been seeking recognition through their association, the British Columbia Government Lawyers Association (BCGLA) since 2013. They take the position that they should have the same rights as other workers. They add that the job security that comes with unionization is critical so that government lawyers can fearlessly give their opinions about the legal power of government to officials and politicians who might not want to hear it. Government lawyers thus have a unique role in protecting the rule of law. Furthermore, they point out that Crown prosecutors are unionized in British Columbia, as are most other prosecutors and government civil lawyers across Canada.

BCGLA covered by Professional Employees Association

In November 2022, the BCGLA applied to the province’s Labour Relations Board to be “certified” as a “bargaining agent” under the law generally applying to workers in the province. The BCGLA claimed that treating them differently would violate Canada’s highest law as it was interpreted in the 2015 cases.   Ironically, the BC Government had, less than a year earlier, amended the law to facilitate the certification process to make it easier, citing the need to prevent employer interference in certification.

By February 2023, the BCGLA established that it is legally a “trade union” as understood by British Columbia labour law and that it had the support of more than 70% of the non-management lawyers working for the British Columbia government for the BCGLA to represent them. Written arguments were exchanged about whether lawyers were an “appropriate bargaining unit” and about the impact, if any, of the Public Service Labour Relations Act. Before those arguments could be completed, however, the provincial government introduced Bill 5 into the legislature.

Bill 5 provides that the civil lawyers working for the provincial government must be part of the “government licensed professionals” bargaining unit- a bargaining unit which is part of a larger public sector union known as the Professional Employees Association (PEA). The “government licensed professionals” bargaining unit is made up of largely science-based professionals and currently includes over 1000 foresters, engineers, agrologists and other professionals working in the public service. In a nutshell, Bill 5 compels the group of 350 government civil lawyers to join the PEA, and effectively eradicates the BCGLA. This means that the only organization that has represented the lawyers for the last 30 years cannot represent them in collective bargaining.

Opposition of Bill 5

The PEA and other unions, as well as the umbrella British Columbia Federation of Labour, opposed Bill 5 on the basis that workers should choose unions, not employers. Bill 5 was opposed by both of British Columbia’s opposition parties- the B.C. United Party and the B.C. Green Party.

+Bill 5 was also opposed by three national lawyer associations in Canada:  the Canadian Association of Crown Counsel, the national organization representing the collective interests of nearly 8,500 Crown prosecutors and civil lawyers employed by governments across Canada; the Association of Justice Counsel, the union representing 3,100 federal public sector lawyers; and the British Columbia Branch of the Canadian Bar Association, a national association representing lawyers in both the private and public sectors, with over 7,700 members in the province of BC alone.  These associations all strongly urged the BC Government to reconsider its action in introducing and proceeding to pass Bill 5, citing that it was an egregious violation of freedom of association, as guaranteed by Canada’s constitution.

“When Bill 5 comes into force, we are going to challenge it in the courts”, says Gareth Morley, President of the BCGLA. “Freedom of association means the right to join not just any union, but a union chosen by workers. Decisions about appropriate bargaining units need to be made in a fair process, not just unilaterally by the employer because they happen to be the government.”

Canada’s courts can declare legislation that violates Canada’s Charter to be of “no force and effect.” The BCGLA believes they will recognize that “freedom of association” is violated if employees make a choice, are seeking to get recognition from a labour board and then are forced into a different union by legislation passed by a government seeking to determine the result.

“This matters – a lot – to our members”, says Morley. “But it should also be of interest to anyone who cares about workers’ rights and upholding and protecting the rule of law.”

Gareth Morley KC

President of the British Columbia Government Lawyers Association (BCGLA)