The Supreme Court of Canada has held, in Saskatchewan
Federation of Labour v. Saskatchewan, 2015 SCC 4, that the
right to strike is an essential part of a meaningful collective
bargaining process that is protected by the fundamental right of
freedom of association set out in section 2(d) of the Canadian
Charter of Rights and Freedoms (the
In 2007, the Saskatchewan government introduced legislation
which prohibited public sector employees who were unilaterally
designated as "essential service employees" from
participating in any strike action against their employer. The
legislation did not provide for any meaningful alternative
mechanism for resolving a collective bargaining impasse. The unions
whose employees were declared to be "essential service
employees" challenged the constitutionality of the
Section 2(d) of the Charter guarantees the
right of employees to associate for the purpose of advancing
workplace goals through a process of collective bargaining. The SCC
found that the right to strike is an essential part of a meaningful
collective bargaining process. When strike action is limited in a
way that substantially interferes with the process of collective
bargaining, it must be replaced by one of the meaningful dispute
resolution mechanisms commonly used in labour relations.
The fact that the legislation at issue prohibited employees from
engaging in strike activity and did not provide
for any meaningful alternative mechanism for resolving a collective
bargaining impasse was held to amount to a substantial interference
with their constitutional right to a meaningful process of
collective bargaining and, as a result, violated section 2(d) of
the Charter. The legislation was declared unconstitutional.
Implications of this Decision:
The practical impact of this decision on private sector
employees is limited as the Charter, and the
constitutional guarantees it enshrines, applies only to government
Many provinces in Canada have legislation in place which
designates some public sector employees to be "essential
service employees" and prohibit those employees from striking.
For example, it is common for legislation to prohibit police
officers, fire fighters and health care workers from engaging in
What has been made clear by the Supreme Court of Canada is that
where legislation prohibits public sector employees from engaging
in strike activity, the legislation must provide
some sort of meaningful alternative mechanism for resolving a
collective bargaining impasse. One of the most common alternative
mechanisms is binding interest arbitration. In binding interest
arbitration, an arbitration board will hear representations from
both parties with respect to the collective bargaining matters that
are in dispute and will issue a decision which sets out the terms
of the collective bargaining agreement which will then bind the
However, the alternative mechanism of binding interest
arbitration often leaves much to be desired. Rather than bargaining
the terms of a collective agreement, a collective agreement is
imposed by an arbitration board. Although an arbitration board is
tasked with attempting to replicate what the parties might have
arrived at if they had been left to free market forces, public
sector employers often lament that arbitration boards fail to put
sufficient weight on the financial implications of their decisions.
The financial terms of an interest arbitration decision (e.g. wage
increases, pension plans, etc.) can often wreak havoc on the
budgets of public sector employers.
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about your specific circumstances.
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