Constitutional Protection of the Right to Strike

Caroline Quesnel
Legal and Social Affairs Division

On 30 January 2015, the Supreme Court of Canada recognized a constitutional protection of the right to strike, ruling that it is an indispensable part of collective bargaining.

The Court’s decision in Saskatchewan Federation of Labour v. Saskatchewan is likely to have important implications for governments wishing to limit the strike activity of public sector workers, in particular those designated as performing essential services.

Moving forward, legislation that interferes with the right to strike will need to be tailored in a way that is minimally impairing to avoid being declared unconstitutional.

Case history: Public Service Essential Services Act

In 2008, the Government of Saskatchewan introduced the Public Service Essential Services Act in a stated desire to move away from regulating public sector strikes on an ad hoc basis. This legislation prohibited designated employees who provide “essential services” from participating in strike action.

Under this Act, public employers could unilaterally designate which public services were essential, what classifications of employees would be required to continue to work during a strike, and the number of employees in each of these classifications.

While the Saskatchewan Labour Relations Board could review the number of employees required to continue working during a strike, it had no authority to review other determinations made by the employer. The Act provided no alternative dispute resolution mechanism.

Several unions challenged the constitutionality of this new legislative scheme.

The decision: “Substantial interference” with collective bargaining

In its ruling, the Supreme Court found that section 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association, includes a protection of the right to strike.

The Court said that the right to strike is not “merely derivative” of the right to a meaningful process of collective bargaining; it is an essential, indispensable component of that right. It said that legislation interfering with the right to strike infringes section 2(d) of the Charter when it amounts to a “substantial interference” with collective bargaining.

The Court found that, by preventing designated employees from engaging in any strike activity as part of the bargaining process, Saskatchewan’s essential services legislation constituted such an infringement.

According to the Court, the complete prohibition of strike activity for designated employees could not be justified. In striking down the legislation because it did not impair constitutional rights as minimally as it could, the Court identified two issues with the Public Service Essential Services Act :

  • First, the employer could unilaterally designate essential services that are to be maintained during a work stoppage, without an adequate review mechanism for this determination.
  • Second, the Act provided no meaningful dispute resolution mechanism to resolve the bargaining impasse.

The Court declared the Public Service Essential Services Act invalid, but suspended this declaration of invalidity for one year.

Implications for legislators and unions

As a result of the Supreme Court’s ruling, governments seeking to justify legislation that interferes with strike activity will need to address the two main issues identified by the Court.

Legislation is likely to be challenged if it gives unilateral power to employers to determine what services and which employees are “essential” without a review process. It is also likely to be challenged if it fails to provide a meaningful dispute resolution mechanism as an alternative to resolve a bargaining impasse.

The question remains as to whether addressing one, or even both, of these issues will suffice to justify the infringement.

The Court’s decision may have an impact on other public service unions. On 24 March 2014, the Public Service Alliance of Canada, which represents workers in federal government departments and agencies, launched a constitutional challenge to federal omnibus legislation.

This legislation introduced a series of reforms to federal public service labour legislation, including the method of determining what are essential services and the process for resolving collective bargaining disputes.

The Saskatchewan Federation of Labour decision may also have repercussions on back‑to‑work legislation. While the Court dealt specifically with essential services in the provincial public sector, its ruling condemning the unlimited, unilateral designating power of the employer and the lack of an alternative dispute resolution mechanism may be applicable to other circumstances.

The Canadian Union of Postal Workers and the Air Canada Pilots Association have challenged back-to-work legislation enacted in 2011 and 2012, claiming violations of a constitutional right to strike that had yet to be recognized.

By recognizing that freedom of association includes a protection of the right to strike, the Saskatchewan Federation of Labour decision changes the landscape in which these challenges will occur.

Whether arbitration, which is generally mandated in back-to-work legislation, will suffice to justify legislative interference with the right to strike remains to be seen.