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The Constitutional Right to Strike Preserved by Supreme Court of Canada

A central feature of collective bargaining – contract negotiations between unions and employers – is the ability for either party to apply economic pressure to achieve their goals.  For the employer this happens by locking the employees out, for the union by taking the employees out on strike.  However, we have seen that right “taken away” in the context of public services in all jurisdictions: where those services are deemed “essential” they can be legislated back to work by the respective government.  Historically, the definition of “essential” has both been fairly broad and also one that has been left to the government.

However, a recent decision of the Supreme Court of Canada (the “SCC”) will force governments to be more circumspect in their application of the term “essential services”, where that definition results in removing the right to strike.  In Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4 the SCC affirmed that “the right to strike” is an “indispensable component” of collective bargaining, which is protected by section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”), which relates to freedom of association.

This case originally arose from legislation passed by the Saskatchewan government in May 2008 (the Public Service Essential Services Act or “PSESA”) that removed the right of public services employees to strike where those employees were designated as “essential services employees” – a designation that could be unilaterally imposed by the government.  Shortly after the legislation came into force, it was challenged by the Saskatchewan Federation of Labour (the “Federation”) as violating the Charter’s protection of collective bargaining under section 2(d).

The trial judge agreed with the Federation that the right to strike was constitutionally protected.  The next part of the trial judge’s analysis found that the prohibition on the right to strike both substantially interfered with the Charter rights of the affected employees and was not proportionate, meaning that it was not a “reasonable limit” that could be saved under the more general section 1 of the Charter.

While the Saskatchewan Court of Appeal reversed the trial court’s ruling, the SCC has essentially restored that verdict.  Two of the biggest problems the SCC found with the PSESA were:

• It did not give unions any recourse to independent review of a designation of “essential”; and
• It did not compensate for removing the right to strike by providing an alternate and effective dispute resolution process; in many jurisdictions, this is done by providing that the parties enter into an “interest arbitration”, but this was not part of the PSESA.

The decision also calls into question the scope of how many/what services are truly “essential” in the context of that case.

What this means for the rest of the country is that, on the whole the SCC decision appears to have set the bar quite high for such “essential services” legislation.  Accordingly, we can expect that not only will legislation involving the prohibition of the right to strike be scrutinized closely, but also that “back to work” legislation will be much more difficult to uphold – this could play out not only in several challenges to federal legislation that are currently before the Ontario courts, but also in any future clashes on the provincial level (think: Ontario schools).

Click HERE for a list of CCP lawyers practicing in the area of labour relations who can provide guidance on all issues relating to collective bargaining, negotiations and strategies when faced with a potential strike.