On Friday, The Supreme Court of Canada released its judgment in the case of Saskatchewan Federation of Labour v. Saskatchewan. Reversing decades of law, the Court found there is now a Constitutional right to strike in Canada. The Court determined that when a prohibition on striking amounts to a substantial interference with the right to a meaningful process of collective bargaining, it will be considered unconstitutional. In effect, despite past case law of the Supreme Court to the contrary, the Court has now found that the right to strike is a right protected by s.2 of the Charter (freedom of association).
The case arose because of essential services legislation which was introduced by the Saskatchewan government. Under the legislation, in the event of a public sector strike, a public employer and the union must attempt to negotiate an "essential services agreement" to govern how public services will be maintained during the strike. If the parties cannot agree, the public employer can unilaterally designate which public services it considers to be essential, the classifications of employees required to work during the strike, and the names and numbers of employees in each of the classifications. In the case of the government itself, essential services are prescribed by regulation. The union does not have any ability to challenge whether any particular service is essential, which classifications involve the delivery of essential services, or whether particular employees have been reasonably selected.
The Court found that strikes are an essential component of a meaningful process through which workers pursue collective workplace goals, and as such, governments cannot substantially interfere with employees' ability to withdraw services. Where legislative action does so, it will be found in breach of the freedom of association.
The good news from the decision is that the Court recognized that when strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, the legislation may well be justified if it is replaced by an alternative dispute resolution process mechanism (like binding arbitration). However, in the case of the Saskatchewan legislation which was at issue, there was no such mechanism and so the legislation was found to be unconstitutional.
We foresee that there will now be numerous challenges to essential services legislation across the country as unions attempt to argue that the legislative process used by governments substantially interferes with the right of employees to strike, and that where it does, the alternative dispute mechanisms in place are not sufficient to save the legislation. This should be of concern to all public sector employers whose employees are prohibited from striking because of the resulting uncertainty.
We also anticipate unions for years to come will use this decision to resist any regulation of strike activity, such as limits on picketing disruptions, picketing locations, numbers of picketers, and the use of replacement workers. This should be of concern to all employers.
This decision will also require Alberta, if challenged, to convince the courts that its whole system of compulsory arbitration is an adequate replacement to the right to strike. That would be ironic considering that AUPE argued in 2013 that depriving them of their compulsory arbitration process breached the members' Charter rights.
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