Overruling one of its own decisions, the Supreme Court of Canada today has determined that the “right to strike” is protected under s. 2(d) of the Charter, which is the freedom of association provision. In Saskatchewan Federation of Labour v. Saskatchewan, the Court confirmed that legislation that limits the right to strike is unconstitutional unless its limits are reasonable and justified in a free and democratic society.

In practice, this case will ensure that legislators do not limit the right to strike without a strong and compelling justification, and without providing an alternative means of resolving a bargaining impasse –an alternative means that will not undermine the bargaining power of the union. In any event, a law that limits the right to strike must interfere only as much as is necessary.

Background

In 2008, a newly-elected Saskatchewan government passed two pieces of labour legislation, one of which was the Public Service Essential Services Act (PSESA).

Although the Court’s decision addressed both laws, only the PSESA raised issues relating to strike activity. The PSESA established a “controlled strike” system for employees who worked in “essential services” in the public sector, such as hospital workers, certain employees of government agencies, and police officers. It allowed public sector employers and unions to negotiate rules regarding work stoppages so that essential services could continue to be provided to the public. If the parties could not agree, the PSESA allowed public employers to unilaterally impose their own guidelines, subject to very limited review by the Labour Relations Board.

The Saskatchewan Court of Queen’s Bench struck down the PSESA as unconstitutional, believing that the ability to engage in strike activity should be protected by the constitutional right to freedom of association. The Court accepted that essential services need to be provided but concluded that the PSESA went further than it needed to.

The Saskatchewan Court of Appeal disagreed. In its view, any conversation regarding constitutional protection for strike activity under the freedom of association ends with the Supreme Court of Canada’s decisions in the Labour Trilogy, a series of three cases, one of which specifically rejected the concept that freedom of association encompassed a right to strike. The Court of Appeal found that only the SCC could overturn its decision regarding the right to strike. The Court of Appeal also rejected the idea that the PSESA infringed other constitutional rights, such as the freedom of expression, the right to life, liberty, and security of person, and the right to equality.

The Decision

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court of Canada found that the ability to engage in strike activity when negotiations are at an impasse is an essential component of labour relations in Canada. According to the Court, the ability to strike not only upholds the values and objectives of collective bargaining, but also affirms the dignity and autonomy of workers and promotes equality in the bargaining process.

As a result, any limitations on the right to strike must be justified under section 1 of the Charter, which allows for infringements on constitutional rights under very stringent conditions – namely, where limits “can be demonstrably justified in a free and democratic society”. Needless to say, this is a very high standard. On this basis, the Court agreed with the Court of Queen’s Bench that the PSESA went too far in limiting workers’ right to strike.

Implications

This case establishes a high threshold for justifying laws that limit the right to strike. However, the Court recognized the competing interests of workers on the one hand, and employers and the public on the other. In particular, the Court recognized that it is acceptable for the government to restrict the ability of workers to strike when they are needed to provide essential services, so long as the restrictions are justified and proportionate.

Strike restrictions must only go so far as is necessary to ensure that the public is not detrimentally affected. According to the Court, governments should engage with unions to determine what services are truly essential and how many people are required to carry out just those services. At a minimum, legislation must provide a forum where governmental decisions on essential services can be challenged, as well as ensuring that workers who are not allowed to strike are given access to a meaningful alternative mechanism for resolving impasse, such as access to arbitration.

For employers and industries that use alternative systems for resolving a bargaining impasse, it is important to remember that the Court has, time and time again, affirmed that the constitutional right to bargain collectively does not guarantee any particular process. For example, in many provinces, interest arbitration is provided as an alternative means of resolution for bargaining units that provide “essential services”. Although the Court did not consider the sufficiency of this alternative in Saskatchewan Federation of Labour v. Saskatchewan (because it was not provided for under PSESA), it is likely that such alternatives will continue to pass constitutional scrutiny, so long as they are only unilaterally imposed to the extent that strike activity will have serious implications.

Many thanks to Jennifer Bernardo for her assistance in drafting this blog.