Labour and Employment Law Blog

Less than two weeks after handing down one landmark case on the freedom of association, the Court released another such case last Friday, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. The significance of this decision is that the Court has ruled that the right to strike is a guaranteed right of freedom of association protected by Section 2(d) of the Canadian Charter of Rights and Freedoms. This is the first time the Court has declared that the right to strike is a constitutionally protected right.

The decision is a result of litigation arising from the Saskatchewan Public Service Essential Services Act (the “Act”). That legislation, which came into force in May 2008, prohibited public sector employees who perform essential services from striking. Under the Act, if negotiations regarding a collective agreement between the public employees and employer came to an impasse, and an agreement to continue providing essential services in the interim could not be reached by the parties within 30 days, the employer had the power to dictate a certain number of employees continue working to ensure the services would still be provided.

The Court declared this legislation unconstitutional, stating that the "ability of workers to collectively withdraw their services for the purpose of negotiating the terms and conditions of their employment – in other words, to strike – is an essential component of the process through which workers pursue collective workplace goals." This is the second decision in a month where the Supreme Court of Canada has said that the freedom of association requires a meaningful process of collective bargaining. The Court made clear that a meaningful process of collective bargaining must include a right to strike, or a meaningful alternative mechanism for resolving bargaining impasses.

In British Columbia, the Fire and Police Services Collective Bargaining Act provides for arbitration if the union and employer have failed to conclude a collective agreement. The B.C. Labour Relations Code allows essential service providers, such as health service workers and teachers, to strike provided essential services are still being met. Essential services are defined as those related to the health, safety or the welfare of British Columbia residents, or to the provision of primary or secondary educational programs. If the B.C. Minister of Labour and Citizens’ Services thinks that a strike or lockout may pose a threat to “essential services” for British Columbians, then the Minister may direct the Labour Relations Board to designate these services as required to be performed.

In Alberta, public service employees (i.e. employees of government agencies and Crown corporations) are governed by the Public Service Employee Relations Act. This act prohibits strikes or lockouts. However, it establishes compulsory binding arbitration as the method of resolving collective bargaining disputes, which may be viewed as a meaningful alternative mechanism for resolving bargaining impasses.

Given the Court’s decision, it is now open to argument whether any limitations on the right to strike – such as those for teachers, health services providers, or even managers – may be struck down as violating the Charter.

The Supreme Court of Canada decision also included a challenge to Saskatchewan’s legislated amendments regarding the certification process and permissible employer communications set out in the Trade Union Amendment Act, 2008, which the Court concluded did not breach the Charter.