Canada: Constitutional Protection For The Right To Strike: Saskatchewan Federation Of Labour V. Saskatchewan, 2015 SCC 4

Previously printed in the CCH's Focus on Canadian Employment and Equality Rights (CEER) Newsletter.

For years, governments have struggled to allow the voluntary resolution of collective bargaining disputes while at the same time protecting the public interest. That challenge has become more complex now that the Supreme Court of Canada (the "SCC") reversed a decades old precedent and concluded that the right to strike is protected as part of the fundamental freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. This is one of the latest developments in the Court's application of section 2(d) to the right to participate in a process of meaningful collective bargaining.

The case concerned provincial legislation in Saskatchewan to address the continuation of essential services during public sector strikes. Failing agreement on essential services, the legislation allowed the employer to unilaterally dictate essential services levels. Where the employer was the government, essential services were governed by regulation. Unions had very little practical input then in determining what services are essential and what levels of those services are necessarily maintained in the public interest during a strike.

In a 5-2 decision, a majority of the SCC found that the historical, international and jurisprudential landscape supports the conclusion 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 between employers and their employees 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 the legislation did not minimally impair the freedom of association. The key pieces or processes missing in the law were an impartial means of addressing disputes about what services were essential, and access to a meaningful alternative to strike action (like, for example, binding arbitration) to settle the labour dispute.

In addition, the Court held that the scope of services deemed essential in the legislation was too broad – leading to a disproportionate and unjustified restriction on the constitutionally protected right to strike. The Court commented, "[M]ere 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 population".

This case will have significant implications for Canadian legislators and for employers in both the public and private sectors. It will impact all forms of government intervention in the right of unionized employees to strike, including:

  • essential service designations and processes;
  • imposed mediation or arbitration in lieu of the right to strike; and
  • back-to-work legislation passed from time to time to end protracted strikes that are harmful to the public or the economy.

Just last month, the Alberta government stated that it would repeal Bill 45, which had been passed late last year but not yet proclaimed into law, prohibiting "strike threats" in the public sector. Then Premier Jim Prentice stated that the repeal was to signal a new relationship with public sector unions, but it was likely motivated as well by the SCC's decision to enshrine the right to strike in the Charter. On April 1, 2015, the Alberta Court of Queen's Bench, in an unopposed application by the Alberta Union of Provincial Employees, declared unconstitutional certain sections of the Labour Relations Code and the Public Service Employee Relations Act which prevented certain classifications of employees from striking. The Court suspended the declaration for one year.

We are very likely to see other provinces reviewing their essential services legislation to ensure it does not substantially interfere with collective bargaining and the right to strike. For policy makers, it is time to reassess how the public interest (and perhaps the public purse) can be protected short of legislating an end to a lawful strike and imposing a collective agreement.

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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