Saskatchewan Federation of Labour v. Saskatchewan (Constitutional law — Charter of Rights — Freedom of Association — Right to strike)
On appeal from the judgment of the Court of Appeal for Saskatchewan, 2013 SKCA 43, setting aside in part a decision of Ball J., 2012 SKQB 62.
In December, 2007, the newly elected Government of Saskatchewan introduced two statutes: The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (PSESA), andThe Trade Union Amendment Act, 2008, S.S. 2008, c. 26, which became law in May, 2008. The PSESA is Saskatchewan’s first statutory scheme to limit the ability of public sector employees who perform essential services to strike. It prohibits unilaterally designated “essential service employees” from participating in any strike action against their employer. These employees are required to continue the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement. No meaningful mechanism for resolving bargaining impasses is provided. The Trade Union Amendment Act, 2008 changes the union certification process by increasing the required level of written support and reducing the period for receiving written support from employees. It also changes the provisions dealing with communications between employers and their employees. In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESA and The Trade Union Amendment Act, 2008. The trial judge concluded that the right to strike was a fundamental freedom protected by s. 2(d) of the Canadian Charter of Rights and Freedoms and that the prohibition on the right to strike in the PSESA substantially interfered with the s. 2(d) rights of the affected public sector employees. He also found that the absolute ban on the right to strike in thePSESA was neither minimally impairing nor proportionate and therefore was not saved by s. 1 of the Charter. The declaration of invalidity was suspended for one year. On the other hand, the trial judge concluded that the changes to the certification process and permissible employer communications set out in The Trade Union Amendment Act, 2008 did not breach s. 2(d). The Saskatchewan Court of Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect to the constitutionality of the PSESA. The appeal against the finding that The Trade Union Amendment Act, 2008 did not violate s. 2(d) of theCharter was dismissed.
HELD (5-2): (Rothstein and Wagner JJ. dissenting in part): The appeal with respect to the PSESA should be allowed. The prohibition against strikes in the PSESA substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2(d) of the Charter. The infringement is not justified under s. 1. The declaration of invalidity is suspended for one year. The appeal with respect to The Trade Union Amendment Act, 2008 is dismissed.
Per McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis JJ.:
The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is constitutionally protected by s. 2 (d).
In Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia,  2 S.C.R. 391, this Court recognized that the Charter values of “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” supported protecting the right to a meaningful process of collective bargaining within the scope of s. 2(d). The right to strike is essential to realizing these values through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives. The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.
The right to strike also promotes equality in the bargaining process. This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. While strike activity itself does not guarantee that a labour dispute will be resolved in any particular manner, or that it will be resolved at all, it is the possibility of a strike which enables workers to negotiate their employment terms on a more equal footing.
In 1935, the Wagner Act was adopted in the United States, introducing a model of labour relations that came to inspire legislative schemes across Canada. This model was adopted in Canada because the federal and provincial governments recognized the fundamental need for workers to participate in the regulation of their work environment. One of the goals of the Wagner model was to reduce the frequency of strikes by ensuring a commitment to meaningful collective bargaining. The right to strike, however, is not a creature just of the Wagner model. Most labour relations models include it because the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals.
Canada’s international human rights obligations also mandate protecting the right to strike as part of a meaningful process of collective bargaining. Canada is a party to international instruments which explicitly protect the right to strike. Besides these explicit commitments, other sources confirm the protection of a right to strike recognized in international law. And strikes are protected globally, existing in many of the countries with labour laws outside the Wagner Act model.
This historical, international, and jurisprudential landscape suggests compellingly that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. The ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is, and has historically been, the irreducible minimum of the freedom to associate in Canadian labour relations.
To determine whether there has been an infringement of s. 2(d) of the Charter, the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining. The prohibition in thePSESA on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment meets this threshold and therefore amounts to a violation of s. 2(d) of the Charter.
The breach of s. 2(d) of the Charter is not justified under s. 1. The maintenance of essential public services is self-evidently a pressing and substantial objective, but the determinative issue in this case is whether the means chosen by the government are minimally impairing, that is, carefully tailored so that rights are impaired no more than necessary.
The fact that a service is provided exclusively through the public sector does not inevitably lead to the conclusion that it is properly considered “essential”. Under the PSESA, a public employer has the unilateral authority to dictate whether and how essential services will be maintained, including the authority to determine the classifications of employees who must continue to work during the work stoppage, the number and names of employees within each classification, and, for public employers other than the Government of Saskatchewan, the essential services that are to be maintained. Only the number of employees required to work is subject to review by the Saskatchewan Labour Relations Board. And even where an employee has been prohibited from participating in strike activity, the PSESA does not tailor his or her responsibilities to the performance of essential services alone. The provisions of the PSESA therefore go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.
Nor is there any access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration. Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Those public sector employees who provide essential services have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, but they do not argue for no mechanism at all.
The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the conclusion that the PSESA is not minimally impairing. It is therefore unconstitutional.
The Trade Union Amendment Act, 2008, on the other hand, does not violate s. 2(d). The changes it introduces to the process by which unions may obtain or lose the status of a bargaining representative, as well as the changes to the rules governing employer communication to employees, do not substantially interfere with freedom of association.
Per Rothstein and Wagner JJ. (dissenting in part):
This Court should not intrude into the policy development role of elected legislators by constitutionalizing the right to strike under the freedom of association guarantee in s. 2(d) of the Charter. The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees and the public. Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained.
Democratically elected legislatures are responsible for determining the appropriate balance between competing economic and social interests in the area of labour relations. This Court has long recognized that it is the role of legislators and not judges to balance competing tensions in making policy decisions, particularly in the area of socio-economic policy. The legislative branch requires flexibility to deal with changing circumstances and social values. Canadian labour relations is a complex web of intersecting interests, rights and obligations, and has far-reaching implications for Canadian society. It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives. The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches.
Constitutionalizing a right to strike restricts governments’ flexibility, impedes their ability to balance the interests of workers with the broader public interest, and interferes with the proper role and responsibility of governments. Constitutionalizing a right to strike introduces great uncertainty into labour relations: it will make all statutory limits on the right to strike presumptively unconstitutional. By constitutionalizing a broad conception of the right to strike, the majority binds the governments’s hands and limits its ability to respond to changing needs and circumstances in the dynamic field of labour relations.
Constitutionalizing a right to strike enshrines a political understanding of the concept of “workplace justice” that favours the interests of employees over those of employers and even over those of the public. While employees are granted constitutional rights, constitutional obligations are imposed on employers. Employers and the public are equally entitled to justice: true workplace justice looks at the interests of all implicated parties. In the public sector, strikes are a political tool. The public expects that public services, and especially essential services, will be delivered. Thus unions attempt to pressure the government to agree to certain demands in order that these services be reinstated. Public sector labour disputes are unique in that the government as employer must take into account that any additional expenditures incurred to meet employee demands will come from public funds.
It is incorrect to say that without the right to strike a constitutionalized right to bargain collectively is meaningless. The threat of work stoppage is not what motivates good faith bargaining. It is the statutory duty, and after Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,  2 S.C.R. 391, the constitutional duty, not the possibility of job action, that compels employers to bargain in good faith. The statutory right to strike allows both employers and employees to exercise economic and political power. Now by constitutionalizing only the ability of employees to exert such power, the majority disturbs the delicate balance of labour relations in Canada and impedes the achievement of true workplace justice.
The conclusion that the right to strike is an indispensable component of collective bargaining does not accord with recent jurisprudence. There is nothing in the concept of collective bargaining as it was defined by this Court in Health Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20,  2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, that would imply that employees have a constitutional right to strike and that employers have a constitutional obligation to preserve the jobs of those employees. The threshold for overturning prior judgments is high. While the s. 2(d) jurisprudence has developed since the Labour Trilogy, neither this development, nor any change in the circumstances of Canadian labour relations justifies a departure from precedent. If anything, developments in the law support a finding that the right to freedom of association does not require constitutionalizing the right to strike. This is because recent s. 2(d) jurisprudence has already established a right to meaningful, good faith collective bargaining.
International bodies disagree as to whether the right to strike is protected under international labour and human rights instruments. The current state of international law on the right to strike is unclear and provides no guidance in determining whether this right is an essential element of freedom of association.
A right to strike is not required to ensure the constitutional guarantee of freedom of association. Therefore, the PSESA, which restricts the ability of public sector workers who provide essential services to strike, does not violate the right to meaningful collective bargaining protected under s. 2(d) of theCharter. The PSESA’s controlled strike regime does not render effectively impossible, nor substantially interfere with, the ability of associations representing affected public sector employees to submit representations to employers and to have them considered and discussed in good faith. ThePSESA facilitates consultation between employers and unions regarding the designation of essential services and the evidence in this case demonstrates that good faith collective bargaining took place. A violation of s. 2(d) of the Chartercannot be founded simply on allegations that the legislation does not provide an adequate dispute resolution process; s. 2(d) does not entail such a right. Moreover, the goal of strikes is not to ensure meaningful collective bargaining, but instead to exert political pressure on employers. Finally, the statutory balance struck by the Government of Saskatchewan is eminently reasonable. Canadian federal and provincial governments have made a constitutional commitment “to provide essential public services of reasonable quality to all Canadians” (Constitution Act, 1982, s. 36(1)(c)). As a result, the Government of Saskatchewan cannot subject itself to arbitral awards that could make it unaffordable to deliver on its undertaking. It has devised a particular legislative framework in order to safeguard the continued delivery of essential services to the community during labour disputes. This Court should defer to the government’s policy choices in balancing the interests of employers, employees, and the public.
The Trade Union Amendment Act, 2008 does not infringe the right to freedom of association.
Reasons for judgment by Abella J., dissenting reasons by Rothstein and Wagner JJ. Neutral citation: 2015 SCC 4. No. 35423.