In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC
4, the Supreme Court of Canada reversed its 1987 decision and
concluded that the right to strike is protected under section 2(d)
of the Charter: freedom of association. This change comes in the
wake of recent SCC decisions which solidified the right to
collectively bargain under section 2(d). Ultimately, the SCC
concluded "[t]he right to strike is not merely derivative of
collective bargaining, it is an indispensable component of that
The facts of the case originated in Saskatchewan's public
sector strikes (nurses, corrections workers, snow plow operators,
etc.), which sparked concerns about public safety. The provincial
government brought in a new law to regulate and limit public sector
employees who perform "essential services" (which was
defined broadly) from striking. The public sector employer and the
union had the option to negotiate an "essential services
agreement" in the event of work stoppage but, failing an
agreement, the employer could unilaterally dictate the essential
services levels. Where the employer was the government, essential
services were governed by regulation. Effectively, the essential
services employees' ability to strike was very restricted. As a
result, the unions challenged the constitutionality of these laws
under s. 2(d).
In a 5-2 decision, the SCC majority stated that the historical,
international, and jurisprudential landscape supported the finding
that without the right to strike, "a constitutionalized right
to bargain collectively is meaningless". Stated differently,
the right to strike gives unions a necessary lever for collective
bargaining (the sanction of collectively withdrawing services). The
SCC found that this lever is required to help rectify the
fundamental power imbalance in employment relationships.
Applied to the essential services aspects of the impugned law,
the SCC concluded that the absence of "meaningful dispute
resolution mechanisms" was fatal, and not minimally impairing
on the freedom of association. The key pieces/ processes missing in
the law were:
an impartial and effective dispute resolution process to
consider an employer's unilateral designation with regard to
the maintenance of essential services, such as whether the service
is essential, or which job classifications involve the delivery of
genuinely essential services; and
access to a meaningful alternative mechanism for resolving
bargaining impasses, such as arbitration, which was viewed as
crucial for essential services employees.
The SCC concluded by noting that "Mere inconvenience to
members of the public does not fall within the ambit of the
essential services justification for abrogating the freedom to
strike." Rather, essential services have been defined as
"... those needed to prevent a 'clear and imminent threat
to the life, personal safety or health of the whole or part of the
Takeaways from the Decision
Applied to B.C., there is a strong argument that the BC Labour
Relations Code provides an impartial and effective dispute
resolution process for essential services disputes. As a result,
process #1 above is addressed in B.C.
However, regarding process #2 in B.C., not all essential
services employees have a "meaningful alternative mechanism
for resolving bargaining impasses", e.g. binding arbitration.
Going forward, unions may push for such a process where there is
not already one.
Under either of the processes, unions will likely use the
language in this case to reaffirm or increase the threshold of what
is an essential service: "a clear and imminent threat to the
life, personal safety or health of the whole or part of the
The case also looked at another Saskatchewan law that made the
certification of unions harder for employees (higher card
thresholds, shorter card expiry periods, eliminating the automatic
certification option, allowing employers to communicate "facts
and its opinions to its employees" during the certification
process without it being an unfair labour process). This law was
upheld by the SCC and is reflective of what is already permitted
under the BC Labour Relations Code.
The SCC continues to overturn its own decisions to afford
Charter rights to unions in order to rectify the "power
imbalance" held by employers.
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