Two recent decisions of the Supreme Court of Canada push the boundaries of the freedom of association. However, the decisions should have very limited application (if any) to most employers in BC.

In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 the Supreme Court of Canada said that the Canadian Charter of Rights and Freedoms protects the rights of unionized employees to strike. This decision overturns a 1987 case which held that the right to strike was not protected.

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 resolution mechanism.

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 force).

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 Charter.

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.

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.