On April 26, 2013, the Saskatchewan Court of Appeal confirmed that the right to strike is not a guaranteed protection under section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”) which protects the freedom of association. In so doing, the Court of Appeal upheld the constitutionality of two pieces of Saskatchewan legislation: the Public Service Essential Services Act (“Essential Services Act”) and the Trade Union Amendment Act, 2008 (“TUA Act”).
The Essential Services Act establishes a regime for public sectors employers and unions to negotiate agreements outlining which services are “essential” and must be maintained during a strike as well as the employees who are to continue working in the event of a strike. Where the parties are unable to reach an agreement, the employer is entitled to serve a notice setting out what services are to be maintained as well as which employees are required to work during a strike. The legislation also contains a mechanism for the union to have parts of the notice reviewed by the Labour Relations Board.
The TUA Act changed provincial legislation to make it more difficult for unions to obtain certification by increasing the minimum level of support required before a mandatory certification vote will be held, and by eliminating card based certification whereby a union can be certified after it obtained a certain percentage of membership support. The legislation also expands the scope of permissible employer communications to allow for the communication of facts and employer opinions.
The Saskatchewan Federation of Labour (“SFL”) and various other unions challenged the constitutionality of both pieces of legislation, primarily on the basis that the Acts infringe freedom of association rights under the Charter.
In rejecting this argument, and thereby upholding the constitutionality of both pieces of legislation, the Court of Appeal confirmed that section 2(d) of the Charter, as it has been interpreted by the Supreme Court of Canada, does not include a right to strike or access to any particular labour relations scheme. Rather, the right to collectively bargain as a freedom of association protection only guarantees the ability to associate to achieve collective goals. This protection simply requires a bargaining process that permits employees to organize and make representations to employers, which must be considered in good faith, and that any government action must not cause “substantial interference” with the ability to bargain collectively.
This decision is consistent with a number of recent decisions of appellate courts across Canada who have shown a general tendency to avoid granting constitutional protection to the right to strike, or otherwise confirm entitlement to any particular labour relations scheme.
If you have any questions about the implications of this decision, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at:
Click here for downloadable version