Recent high profile labour relations events, such as Air Canada employees and their right to strike, continue to put the issue of whether governments can limit a Union’s ability to strike back in the spotlight. Courts and Tribunals of various levels continue to tackle this issue and the issue of the extent governments can intervene in the collective bargaining context despite recent decisions from the Supreme Court of Canada.
For instance, in February, 2012, the Saskatchewan Court of Queen’s Bench issued a decision addressing whether Saskatchewan’s Public Service Essential Services Act (“PSES”) infringes the Charter of Rights and Freedoms.
The PSES applies to all public employers in Saskatchewan, including the government itself, as well as Crown corporations, regional health authorities, universities, and municipalities. The basic purpose of the PSES is to allow public employers to maintain essential services during a strike. Under the legislation, essential services are those which are necessary to prevent danger to life, health or safety, destruction of property, environmental damage or disruption of courts. Public service employers are required to negotiate with their unions and reach an agreement regarding which services are essential and which employees are required to maintain these essential services. If the parties are unable to agree, the employer can unilaterally decide which employees must work during a strike.
In determining whether the PSES is constitutional, the Court reviewed the Supreme Court of Canada’s decisions in BC Health Services and Fraser v. Ontario (Attorney General). In BC Health Services, the Court held that freedom of association rights protected by the Charter included the right to collectively bargain. In 2011, the Court revisited the issue in Fraser, and held that freedom of association rights under s. 2(d) of the Charter did not guarantee access to any particular model of labour relations, but instead protected the right of workers to associate in order to achieve workplace goals through collective action. The Supreme Court further espoused that “collective bargaining” – previously recognized by the Supreme Court as warranting s. 2(d) protection – necessarily included an obligation on employers to bargain in good faith on workplace issues, and that:
Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter.
Applying the Supreme Court’s analysis from Fraser and BC Health Services, the recent decision of the Saskatchewan Court found that the PSES is unconstitutional because it allows employers to make unilateral decisions about which services are essential. To reach this conclusion, the Court further expanded the scope of freedom of association, as guaranteed by s. 2(d) of the Charter, to protect the right to strike. Assuming this decision is appealed, the Supreme Court will be provided with another opportunity to address the scope of associational rights protected by the Charter.
These decisions will undoubtedly be reviewed in a potential challenge by Air Canada Unions of the Protecting Air Service Act (“PASA”), which prohibits either a lockout or a strike by Air Canada and its Unions. The PASA dictates that the Minister is to appoint an arbitrator to engage the parties in “final offer selection”.
With Charter challenges occurring in multiple fronts, it shows that the extent of the Constitutional protection of collective bargaining is still ambiguous and requires extensive clarification from the Courts and Tribunals.
If you have any questions relating to collective bargaining, strikes, and lockouts, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in workplace law, please visit our website at: www.mathewsdinsdale.com/news-events/in-a-flash/