In December 2007 the Government of Saskatchewan enacted the
Public Service Essential Services Act which came into
force in May 2008. Under the Act designated essential service
employees were prohibited from participating in a strike. The
public employer could unilaterally designate how essential services
would be maintained during a strike and the level of essential
services necessary. Designated essential service employees were
required to perform all of their duties during a strike, including
the non-essential elements of their job. If a designated essential
service employee chose to participate in a strike without lawful
excuse, they could face a summary conviction. No alternative
dispute resolution process was provided.
The Supreme Court held that the right to strike is an
indispensable component of the right to collective bargaining which
itself is protected by Section 2(d) of the Charter which guarantees
everyone the right of freedom of association. The Court also
recognized that the right to strike is not unfettered. The Court
specifically recognized the need to ensure that essential services
are maintained and this can be accomplished if the legislation at
issue replaces the right to strike with a meaningful dispute
The Supreme Court declared the Public Service Essential
Services Act unconstitutional but allowed the government of
Saskatchewan a 12 month grace period before it is declared invalid.
A new version of the Act has already been passed (but not yet in
This decision followed on the heels of another important labour
relations case regarding collective bargaining rights.
In Mounted Police Association of Ontario v.
Canada (Attorney General), 2015 SCC 1 the Supreme Court
held that a provision of the federal Public Service Labour
Relations Act was unconstitutional because it excluded RCMP
personnel from the definition of "employee". This
exclusion meant that RCMP personnel did not have the same rights to
unionize or engage in collective bargaining enjoyed by other
federally regulated employees. Instead of a voluntarily selected
union, the RCMP were represented by the Staff Relations Represented
Program which is made up of elected civil and regular RCMP members,
but did not have the same authorities or powers traditionally
associated with a Union.
The Supreme Court held that the legislation did not permit
meaningful collective bargaining as it failed to respect the
freedom of association rights of RCMP personnel. The offending
portions of the Public Service Labour Relations Act were
declared invalid following a 12 month grace period. However, the
Supreme Court did not order the federal legislature to include the
RCMP in the Public Service Labour Relations Act, leaving
it to parliament to enact a labour relations model appropriate for
the RCMP while still protecting the rights enshrined by the
The bounds and application of the fundamental freedom of
association continues to evolve. The BC Labour Relations
Code contains a dispute resolution process for addressing
essential services which should withstand constitutional scrutiny.
However, it remains to be seen whether unions will attempt to use
the highest court's most recent 'gift' to them to seek
changes to reasonable restrictions on the right to strike that do
exist in legislation across Canada.
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