A central feature of collective bargaining – contract
negotiations between unions and employers – is the ability
for either party to apply economic pressure to achieve their
goals. For the employer this happens by locking the employees
out, for the union by taking the employees out on strike.
However, we have seen that right "taken away" in the
context of public services in all jurisdictions: where those
services are deemed "essential" they can be legislated
back to work by the respective government. Historically, the
definition of "essential" has both been fairly broad and
also one that has been left to the government.
However, a recent decision of the Supreme Court of Canada (the
"SCC") will force governments to be more circumspect in
their application of the term "essential services", where
that definition results in removing the right to strike.
In Saskatchewan Federation of Labour v.
Saskatchewan 2015 SCC 4 the SCC affirmed that "the
right to strike" is an "indispensable component" of
collective bargaining, which is protected by section 2(d) of the
Canadian Charter of Rights and Freedoms (the
"Charter"), which relates to freedom of association.
This case originally arose from legislation passed by the
Saskatchewan government in May 2008 (the Public Service
Essential Services Act or "PSESA") that removed the
right of public services employees to strike where those employees
were designated as "essential services employees" –
a designation that could be unilaterally imposed by the
government. Shortly after the legislation came into force, it
was challenged by the Saskatchewan Federation of Labour (the
"Federation") as violating the Charter's protection
of collective bargaining under section 2(d).
The trial judge agreed with the Federation that the right to
strike was constitutionally protected. The next part of the
trial judge's analysis found that the prohibition on the right
to strike both substantially interfered with the Charter rights of
the affected employees and was not proportionate, meaning that it
was not a "reasonable limit" that could be saved under
the more general section 1 of the Charter.
While the Saskatchewan Court of Appeal reversed the trial
court's ruling, the SCC has essentially restored that
verdict. Two of the biggest problems the SCC found with the
It did not give unions any recourse to independent review of a
designation of "essential"; and
It did not compensate for removing the right to strike by
providing an alternate and effective dispute resolution process; in
many jurisdictions, this is done by providing that the parties
enter into an "interest arbitration", but this was not
part of the PSESA.
The decision also calls into question the scope of how many/what
services are truly "essential" in the context of that
What this means for the rest of the country is that, on the
whole the SCC decision appears to have set the bar quite high for
such "essential services" legislation. Accordingly,
we can expect that not only will legislation involving the
prohibition of the right to strike be scrutinized closely, but also
that "back to work" legislation will be much more
difficult to uphold – this could play out not only in several
challenges to federal legislation that are currently before the
Ontario courts, but also in any future clashes on the provincial
level (think: Ontario schools).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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