The recent decision of the Supreme Court of Canada in
Saskatchewan Federation of Labour v.
Saskatchewan1 recognized for the first time a
constitutional right to strike for employees. The
case involving The Public Service Essential Services Act,
which has been introduced by the Government of Saskatchewan in 2008
in response to strike actions by public employees. The Act
prohibited public sector employees who had been designated as
"essential" from striking. At trial, the legislation was
struck down as unconstitutional, but this decision was reversed by
the Saskatchewan Court of Appeal. The Supreme Court agreed with the
trial judge and ruled that the legislation was unconstitutional but
suspended the declaration of invalidity for 12 months to allow the
government to craft alternative legislation.
The Supreme Court drew support for this from its own 2007 ruling
to the effect that the protection of freedom of association in the
Canadian Charter of Rights and Freedoms guaranteed a
procedural right to collective bargaining. The Court felt that
"the right to strike is not merely derivative of collective
bargaining" but rather "is an indispensable component of
that right". The Court supported their decision with reference
to the historical significance of strikes as a tool for workers to
negotiate fair compensation and to several international agreements
on labour that have been ratified by Canada.
Having found that the right to strike was constitutionally
protected, the Supreme Court went on to consider whether the
legislation minimally impaired the right to strike. The Court was
critical of the unilateral ability of the employer to designate a
service as essential, noting that "the fact that a service is
provided exclusively through the public sector does not inevitably
lead to the conclusion that it is properly considered
'essential'". Further, the Act required that employees
prohibited from striking were to continue all of their employment
duties rather than only being required to perform duties properly
considered essential. Finally, the Court found that the failure of
the legislation to provide access to another method of dispute
resolution, such as arbitration, did not properly balance the loss
of bargaining power suffered by the employees from being prohibited
This ruling is another in a series of recent cases from the
Supreme Court expanding constitutional protection for collective
bargaining rights. It will be interesting to follow the continuing
development of this area of law as new legislation is created that
attempts to balance the right of workers to strike with the need
for essential services. The effect of this decision on
existing legislation, such as Alberta's Public Service
Employee Relations Act, is also unclear. Alberta's
legislation prohibits strike action for certain essential services,
but provides for the alternative mechanism of compulsory binding
The law in this area appears to be evolving fairly
rapidly. As recently as 1987 the Supreme Court had confirmed
that there was no constitutional protection for a
right to strike. This is certainly an area of the law worth
1. Saskatchewan Federation of Labour v
Saskatchewan, 2015 SCC 4.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).