On Friday, The Supreme Court of Canada released its judgment in
the case of Saskatchewan Federation of Labour v.
Saskatchewan. Reversing decades of law, the Court
found there is now a Constitutional right to strike in Canada. The
Court determined that when a prohibition on striking amounts to a
substantial interference with the right to a meaningful process of
collective bargaining, it will be considered unconstitutional. In
effect, despite past case law of the Supreme Court to the contrary,
the Court has now found that the right to strike is a right
protected by s.2 of the Charter (freedom of
The case arose because of essential services legislation which
was introduced by the Saskatchewan government. Under the
legislation, in the event of a public sector strike, a public
employer and the union must attempt to negotiate an "essential
services agreement" to govern how public services will be
maintained during the strike. If the parties cannot agree, the
public employer can unilaterally designate which public services it
considers to be essential, the classifications of employees
required to work during the strike, and the names and numbers of
employees in each of the classifications. In the case of the
government itself, essential services are prescribed by regulation.
The union does not have any ability to challenge whether any
particular service is essential, which classifications involve the
delivery of essential services, or whether particular employees
have been reasonably selected.
The Court found that strikes are an essential component of a
meaningful process through which workers pursue collective
workplace goals, and as such, governments cannot substantially
interfere with employees' ability to withdraw services. Where
legislative action does so, it will be found in breach of the
freedom of association.
The good news from the decision is that the Court recognized
that when strike action is limited in a way that substantially
interferes with a meaningful process of collective bargaining, the
legislation may well be justified if it is replaced by an
alternative dispute resolution process mechanism (like binding
arbitration). However, in the case of the Saskatchewan legislation
which was at issue, there was no such mechanism and so the
legislation was found to be unconstitutional.
We foresee that there will now be numerous challenges to
essential services legislation across the country as unions attempt
to argue that the legislative process used by governments
substantially interferes with the right of employees to strike, and
that where it does, the alternative dispute mechanisms in place are
not sufficient to save the legislation. This should be of concern
to all public sector employers whose employees are prohibited from
striking because of the resulting uncertainty.
We also anticipate unions for years to come will use this
decision to resist any regulation of strike activity, such as
limits on picketing disruptions, picketing locations, numbers of
picketers, and the use of replacement workers. This should be of
concern to all employers.
This decision will also require Alberta, if challenged, to
convince the courts that its whole system of compulsory arbitration
is an adequate replacement to the right to strike. That would be
ironic considering that AUPE argued in 2013 that depriving them of
their compulsory arbitration process breached the members'
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