SCC gives the right to strike constitutional protection for the first time

February 20, 2015 | Monique Petrin Nicholson, Scott R. J. Sherlock

The recent decision of the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan[1] recognized for the first time a constitutional right to strike for employees.  The case involving The Public Service Essential Services Act, which has been introduced by the Government of Saskatchewan in 2008 in response to strike actions by public employees. The Act prohibited public sector employees who had been designated as “essential” from striking. At trial, the legislation was struck down as unconstitutional, but this decision was reversed by the Saskatchewan Court of Appeal. The Supreme Court agreed with the trial judge and ruled that the legislation was unconstitutional but suspended the declaration of invalidity for 12 months to allow the government to craft alternative legislation.

The Supreme Court drew support for this from its own 2007 ruling to the effect that the protection of freedom of association in the Canadian Charter of Rights and Freedoms guaranteed a procedural right to collective bargaining. The Court felt that “the right to strike is not merely derivative of collective bargaining” but rather “is an indispensable component of that right”. The Court supported their decision with reference to the historical significance of strikes as a tool for workers to negotiate fair compensation and to several international agreements on labour that have been ratified by Canada.

Having found that the right to strike was constitutionally protected, the Supreme Court went on to consider whether the legislation minimally impaired the right to strike. The Court was critical of the unilateral ability of the employer to designate a service as essential, noting that “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’”. Further, the Act required that employees prohibited from striking were to continue all of their employment duties rather than only being required to perform duties properly considered essential. Finally, the Court found that the failure of the legislation to provide access to another method of dispute resolution, such as arbitration, did not properly balance the loss of bargaining power suffered by the employees from being prohibited from striking.

This ruling is another in a series of recent cases from the Supreme Court expanding constitutional protection for collective bargaining rights. It will be interesting to follow the continuing development of this area of law as new legislation is created that attempts to balance the right of workers to strike with the need for essential services.  The effect of this decision on existing legislation, such as Alberta’s Public Service Employee Relations Act, is also unclear.  Alberta’s legislation prohibits strike action for certain essential services, but provides for the alternative mechanism of compulsory binding arbitration.

The law in this area appears to be evolving fairly rapidly.  As recently as 1987 the Supreme Court had confirmed that there was no constitutional protection for a right to strike.  This is certainly an area of the law worth watching closely.

[1] Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4.


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