Today, the Supreme Court of Canada issued a decision upholding
employees' right to strike as a meaningful part of the
collective bargaining process guaranteed under the Canadian Charter
of Rights and Freedoms.
In 2007, the Saskatchewan government passed legislation which
limited the right to strike of public sector employees who
performed "essential services". The legislation provided
for the government and the union representing its employees to
enter into a negotiation as to the identity of the "essential
service employees". However, in the absence of agreement, the
government was given the sole right to make the final determination
The Court had already held that the freedom of association
guaranteed under the Charter included the right to engage in
meaningful collective bargaining. However, the Court has been
careful not to mandate the process by which that collective
bargaining had to take place.
As a result of this decision, we now know, that as a minimum,
the right to collective bargaining must include "the ability
to engage in the collective withdrawal of services". The Court
has held that this is a "necessary component of the process
through which workers can continue to participate meaningfully in
the pursuit of their collective workplace goals.
This decision does not stand for the proposition that essential
service employees have an unfettered right to strike. On the
contrary, the Court recognizes that some employees may indeed
perform services which are so essential that their ability to stop
work must be curtailed.
What the Court found objectionable in this case was that the
legislation did not define essential services to mean services that
truly were essential; the category of workers deemed essential was
subject to the government's unilateral discretion; there was no
impartial and effective dispute resolution process by which the
unions could challenge the government's designation of a
essential service employee and there was no meaningful alternative
mechanism for resolving bargaining impasses.
The effect of the decision has been suspended for a period of
one year to allow the Saskatchewan government to amend its
In 1987, the Supreme Court of Canada held that the right to
freedom of association guaranteed under the Charter did not include
the right to collective bargaining. Twenty years later, in 2007,
the Court reversed itself and held that the Charter did indeed
protect the right of employees to "engage in a meaningful
process of collective bargaining".
In 2011, the Court held that "a meaningful process of
collective bargaining" included a right to join together to
pursue workplace goals, to make collective representations to the
employer, to have the employer consider those representations in
good faith and to have a right of recourse in the event that the
employer did not bargain in good faith. Finally, in a decision
earlier this month, the Court further expanded these requirements
by finding that in order to engage in meaningful collective
agreement, employees had to have the right to bargain independent
of their employer and the right to use how to pursue their
collective interests. This decision further expands the protection
guaranteed to workers under the Charter.
The headnote concludes, "Clearly the arc bends increasingly
towards workplace justice".
We anxiously await the next step!
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