The Supreme Court of Canada recently released its highly anticipated decision in Saskatchewan Federation of Labour v Saskatchewan. In bold and sweeping Reasons for Judgment on behalf of a 5-2 majority, Justice Rosalie Abella overturned the Court’s previous jurisprudence and recognized a constitutionally protected right to strike under section 2(d) of the Canadian Charter of Rights and Freedoms. Section 2(d) of the Charter guarantees the freedom of association.
The case itself dealt with legislation that had granted public sector employers the unilateral authority to designate which employees would be prohibited from participating in an otherwise lawful strike in order to perform “essential services”. The Saskatchewan legislation, which closely resembles amendments subsequently made to federal public sector labour law, departed from the conventional approach to essential services in Canada that tasks expert, independent labour boards with determining whether a service is necessary for the safety or security of the public. Where a service is found to be essential, these boards determine the employees required to perform the service.
The Supreme Court concluded that Saskatchewan’s essential services legislation violated the right to strike as it substantially interfered with a meaningful process of collective bargaining. The Court’s decision to recognize a constitutional right to strike expressly overruled its 1987 decision in the Alberta Reference on this very point. In doing so, the Court adopted a purposive interpretation of the Charter, emphasizing that the right to strike is an indispensable component of meaningful collective bargaining. The Court also relied on the critical role that collective action of this sort plays in affirming the dignity and autonomy of workers, providing them with the opportunity to engage with their employer on a more equal footing.
In addressing the case before it, the Court explained that there is no justification for granting public employers a unilateral power to limit the right of their employees to strike. The Court further held that the legislation in this case went well beyond what was necessary to provide essential services to the public. For example, the legislation permitted employers to require workers to perform non-essential duties, and it failed to provide an alternate dispute resolution mechanism, such as arbitration, for workers who were determined to be essential.
This landmark decision has important implications for labour relations across Canada. For instance, the ruling suggests that governments will be limited in their ability to impose back-to-work legislation on striking workers unless such measures can be justified under section 1 of the Charter. In addition to being required to tender evidence supporting the need for such legislation, governments will also have to take steps to ensure that any restrictions minimally impair workers’ right to strike. This would typically include providing fair and binding interest arbitration to address the bargaining impasse between the parties.
The Court’s decision also advances a broader conception of the constitutional right to collective bargaining. Whereas governments have argued that this right is limited to good faith consultation between the parties, the Court’s decision reinforces that the right is one of meaningful collective bargaining, now backed by a right to strike. This more robust understanding of collective bargaining calls into question earlier appellate court case law that found no violation of the right to collective bargaining where the parties had engaged in a period of negotiations prior to wage restraint legislation being introduced. It also opens the door for groups of workers excluded from traditional labour relations law to argue that they too enjoy the right to collectively withdraw their labour in support of workplace goals. Of course, the parameters of this newly recognized right will be determined in subsequent cases.
Finally, we note that the Supreme Court’s right to strike decision builds on its recent ruling in Mounted Police Association of Ontario v Attorney General of Canada. In that case, released earlier this year, a 6-1 majority of the Court rejected a number of restrictive interpretations on the freedom of association advanced by the Government of Canada. The Court also ruled that the labour relations regime imposed on RCMP members was unconstitutional as it denied these workers the right to be represented by independent associations of their choosing.
Together, these cases build a new foundation of rights that protect the ability of workers to meaningfully influence their terms and conditions of employment. As Justice Abella aptly noted in the Saskatchewan Federation of Labour decision, “Clearly the arc bends increasingly towards workplace justice”.
Andrew Raven and Andrew Astritis are labour lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP in Ottawa. They represented the Public Service Alliance of Canada, which appeared as an intervener before the Supreme Court of Canada in support of the right to strike.
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