February 2, 2015
In a decision that will undoubtedly have wide-ranging labour relations implications for employers, the Supreme Court, by a 5-2 majority, has struck down as unconstitutional Saskatchewan legislation that prevents public-sector employees from striking.
The Supreme Court granted an appeal by the Saskatchewan Federation of Labour of the province’s essential services law that restricts who can strike.
In its decision, the majority of the Supreme Court held that prohibiting an employee from participating in strike action amounts to a substantial interference of an employee’s right to a meaningful process of collective bargaining.
The Supreme Court had previously held in Health Services, Fraser, and Mounted Police Association of Ontario, that under s.2(d) of the Charter a meaningful process of collective bargaining includes, at a minimum:
This list now explicitly includes the right to strike.
The Supreme Court noted that the right to strike corrects a historical imbalance which existed between employees and an employer. The threat, and actual ability to strike, corrects this imbalance by placing pressure on both sides of a labour dispute to engage in good faith bargaining. According to the majority of the Court, this level of pressure could not be achieved through alternative dispute resolution mechanisms.
Following an analysis of the history of Canadian labour relations and considering the impact of international labour standards, the Supreme Court held that the “historical, international and jurisprudential landscape” has arrived at the point, in Canada, where the “right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations.” The Court went on to state that the right to strike is not merely derivative of collective bargaining it is an indispensable component of that right.
The Supreme Court reiterated that whether a legislative scheme “substantially interferes” with the possibility of having meaningful collective negotiations regarding workplace matters is the appropriate test to be applied to determine if s.2(d) of the Charter has been violated.
The legislation at issue in this case gave the Saskatchewan Government the ultimate authority to decide the outcome of a labour dispute, without any recourse or alternatives for those employed in “essential services”.
In this case this legislation did not allow for any alternative mechanism to bargaining if and when a dispute arose and thus was unconstitutional. This was found to have “substantially interfered” with a process of meaningful collective bargaining.
Writing for the dissent of the Supreme Court, Justices Rothstein and Wagner, concluded that there is no right to strike under s. 2(d) of the Charter. The dissent found that the Court should not ignore the established jurisprudence, which has warned of creating an artificial imbalance within labour relations in favour of either employees or employers.
The dissent warns the Court of having “injected” its own one-sided view of workplace justice and ignoring the complex balance which legislatures have carefully honed to satisfy the interests of employers, employees, and the public. Enshrining the right to strike within s.2(d) of the Charter restricts the government’s flexibility in labour relations.
In addition, the dissent noted that a finding that there is a constitutional right to strike is an express contradiction of the Court’s decision in Fraser. The dissent is critical of this approach noting that a more “generous” approach to the interpretation of s.2(d) of the Charter does “not license this Court to indeterminately expand the scope of freedom of association”.
Finally, the dissent concludes that international law is not determinative of the content of s.2(d) of the Charter. An article authored by one of our lawyers, Sonia Regenbogen, was cited by the dissent in its consideration of the status of the right to strike under international law.
As a result of its decision, the Supreme Court has provided the Saskatchewan Government one year to enact new legislation.
If you have any questions about this topic 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: http://www.mathewsdinsdale.com/news-events/in-a-flash/
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