Less than two weeks after handing down one landmark case on the
freedom of association, the Court released another such
case last Friday, Saskatchewan Federation of Labour v. Saskatchewan,
2015 SCC 4. The significance of this decision is that the Court has
ruled that the right to strike is a guaranteed right of freedom of
association protected by Section 2(d) of the Canadian Charter
of Rights and Freedoms. This is the first time the Court has
declared that the right to strike is a constitutionally protected
The decision is a result of litigation arising from the
Saskatchewan Public Service Essential Services Act (the
"Act"). That legislation, which came into force
in May 2008, prohibited public sector employees who perform
essential services from striking. Under the Act, if
negotiations regarding a collective agreement between the public
employees and employer came to an impasse, and an agreement to
continue providing essential services in the interim could not be
reached by the parties within 30 days, the employer had the power
to dictate a certain number of employees continue working to ensure
the services would still be provided.
The Court declared this legislation unconstitutional, stating
that the "ability of workers to collectively withdraw their
services for the purpose of negotiating the terms and conditions of
their employment – in other words, to strike – is an
essential component of the process through which workers pursue
collective workplace goals." This is the second decision in a
month where the Supreme Court of Canada has said that the freedom
of association requires a meaningful process of collective
bargaining. The Court made clear that a meaningful process of
collective bargaining must include a right to strike, or a
meaningful alternative mechanism for resolving bargaining
In British Columbia, the Fire and Police Services Collective
Bargaining Act provides for arbitration if the union and
employer have failed to conclude a collective agreement. The B.C.
Labour Relations Code allows essential service providers,
such as health service workers and teachers, to strike provided
essential services are still being met. Essential services are
defined as those related to the health, safety or the welfare of
British Columbia residents, or to the provision of primary or
secondary educational programs. If the B.C. Minister of Labour and
Citizens' Services thinks that a strike or lockout may pose a
threat to "essential services" for British Columbians,
then the Minister may direct the Labour Relations Board to
designate these services as required to be performed.
In Alberta, public service employees (i.e. employees of
government agencies and Crown corporations) are governed by the
Public Service Employee Relations Act. This act prohibits
strikes or lockouts. However, it establishes compulsory binding
arbitration as the method of resolving collective bargaining
disputes, which may be viewed as a meaningful alternative mechanism
for resolving bargaining impasses.
Given the Court's decision, it is now open to argument
whether any limitations on the right to
strike – such as those for teachers, health services
providers, or even managers – may be struck down as violating
The Supreme Court of Canada decision also included a challenge
to Saskatchewan's legislated amendments regarding the
certification process and permissible employer communications set
out in the Trade Union Amendment Act, 2008, which the
Court concluded did not breach the Charter.
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
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