Last week, the Supreme Court of Canada struck down Saskatchewan’s essential services legislation, which prevented a wide range of public sector employees from striking. This decision—arguably—constitutionalized the right to strike for the first time in Canadian law. However, as with most Supreme Court cases, the Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 [“SFL”] case is fact-specific and it is therefore difficult to predict what its true impact will be.

For now, it is important to note that the case does not conclude that all essential services legislation that imposes limits on strike action will be unconstitutional.

What did the Saskatchewan legislation do?

Saskatchewan’s Public Service Essential Services Act [“PSESA”], which became law in 2008, provided for the designation of “essential services employees” who were “prohibited from participating in any work stoppage against their public employer.” Significantly, employees would have to continue performing all of their duties, and not just those duties deemed “essential,” if there was a strike.

Under the PSESA, the union and the public employer would have the opportunity to negotiate an “essential services agreement”;  however, if they could not reach agreement the employer was allowed to set the terms of who was too “essential” to strike.

Several unions challenged this legislation.

What were the constitutional problems with the PSESA?

There were two:

  1. The PSESA gave the public employer the power to unilaterally decide who and what was “essential.”
  2. The PSESA did not provide a meaningful alternative to strikes, such as arbitration.

The Court accepted that the legislation infringed section 2(d) of the Charter—which protects freedom of association—because it meant that the designated employees could not participate “in any work stoppage as part of the bargaining process.”

This meant the government had to prove that the infringement was a reasonable limit on freedom of association.

The Court found that there were two main areas where the legislation went too far, impairing freedom of association more than necessary to achieve the goal of maintaining essential services:

  1. Unilateral designations: Where the Government of Saskatchewan was the public employer at issue, the categories of “essential service” were pre-determined by regulation and not open for negotiation. For other public employers, if negotiations failed, the public employer would have the “unilateral authority…to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism.” The Saskatchewan Labour Relations Board could review the “number of employees required to work,” but could not review the employer’s other decisions on essential services.
  2. Lack of dispute resolution: There was no alternative “meaningful dispute resolution mechanism to resolve bargaining impasses.” The Act removed the right to strike but did not replace it with anything, such as arbitration, that could protect the employees if collective bargaining broke down.

Is all essential services legislation unconstitutional?

No. Justice Abella indicated that the legislation was “uniquely restrictive of the right to strike” when compared to other Canadian essential services legislation. This suggests that a less restrictive approach might not substantially interfere with freedom of association, or could be considered a reasonable limit on free association.

To survive constitutional scrutiny, it seems that essential services legislation will have to do at least what the Saskatchewan legislation did not:

  1. Allow unions to challenge the designation of essential services and employees if they cannot negotiate it with the employers, through “an impartial and effective dispute resolution process” and
  2. provide for arbitration or another meaningful dispute resolution process as an alternative to a strike.

What is the constitutional status of the right to strike after this decision?

This will continue to be a matter of some debate. The case clearly extended constitutional protection to the right to strike as part of a meaningful collective bargaining process and recognized that the right to strike is inextricably linked to collective bargaining. But how far this right will go beyond that area is to be determined.

What next?

The Supreme Court declared the PSESA to be unconstitutional, but suspended the declaration of invalidity for one year to allow the Saskatchewan government time to revisit the Act.

At the very least, SFL is a wake-up call for legislators drafting essential services statutes. This legislation will need to be carefully tailored to meet the government’s objective of maintaining truly essential services while still protecting the freedom of association of public employees, e.g. by providing for independent review mechanisms and alternative dispute resolution. Regardless, more constitutional challenges likely await.