Tuesday, 3 February 2015

Supreme Court of Canada "Constitutionalizes" the Right to Strike

In a decision that will have deep reverberations throughout the broader public sector across Canada, the Supreme Court has ruled that section 2(d) of the Canadian Charter of Rights and Freedoms protects the right to strike for all workers in Canada, including those public sector employees who are currently covered by labour legislation that limits or eliminates the right to strike.

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court held (in a 5-2 decision) that the right to strike is a merely an extension of the right to engage in meaningful collective negotiation of working conditions, which was previously found to be protected as part of Canadians' "freedom of association", guaranteed by section 2(d) of the Charter.  The majority of the Court found that removing the right to strike curtails this freedom in a manner that is not justified under section 1 of the Charter.  In particular, the Court found that rights under section 2(d) were not "minimally impaired" as the legislation introduced by the Government of Saskatchewan in 2007 gave the employer (the Province) the unilateral discretion to identify the number and identity of workers who would be providing "essential" public services, required those workers to perform all of their regular duties (not just provide services that were deemed to be essential), and offered no alternative mechanism for the resolution of collective bargaining impasses.  In short, the legislation eliminated the right of certain workers to strike (without any negotiation on which services or workers were "essential") and offered no meaningful scheme (such as binding arbitration) to resolve disputes that might otherwise lead to the withdrawal of employees' services. The majority suspended the application of the decision for one year to allow the Government to make necessary modifications to the legislation to comply with the Charter.

The minority (Rothstein and Wagner JJ) held that the majority's decision overstepped the bounds of judicial intervention, effectively ensconcing a right that had previously been found to not exist (in a decision of the Court from 1987).  The minority Justices were of the opinion that the majority's approach removed the flexibility that Government required to balance the interests of employers, employees and the public. In the minority's opinion, recognizing a constitutional right to strike would upset that balance, in favour of employees.

While it remains to be seen how this decision will be interpreted and applied outside Saskatchewan, where legislative schemes differ, it is likely to change the tenor of public sector collective bargaining everywhere.  Public sector employers will likely have to, at least, engage in meaningful negotiation with public sector trade unions regarding which and how many employees are required to perform essential services during a work stoppage.  Those who are required to work during a strike will only have to perform those functions necessary to continue the essential service in question. Where regimes provide for a complete ban on strikes, legislation will have to be amended to provide for some other dispute resolution mechanism as an alternative. 

One outcome is clear, however.  This decision represents a significant victory for the labour movement in Canada, as it has redefined and broadened the meaning of "freedom of association" beyond what it has been for the last 30 years.

Do you have questions about labour relations or employees' right to strike?  Contact Lance Ceaser for expert guidance.

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