Finding More “Meaning” in the Future of Labour Law

We are all looking for meaning in life.

For some of us that means we want to make an impact on the world. For others, it means the mass accumulation of wealth. And for some, like the Justices of the Supreme Court of Canada, it means rendering every textbook published on labour law prior to 2015 entirely obsolete.

Hot on the heels of their recent decision Mounted Police Association of Ontario v. Canada (Attorney General), the Court released a decision on Friday in Saskatchewan Federation of Labour v. Saskatchewan. The majority overturned the Saskatchewan Court of Appeal decision and held that the The Public Service Essential Services Act, which prevented public sector essential workers from striking, was unconstitutional.

The province passed the Act after a series of strikes in 1999 and 2001, which seriously affected the provision of health care, which were followed by strikes in 2006-2007 by highway workers, snow plow operators, and corrections workers, all of which created significant concerns about public safety.

Justice Rothstein, who is making a name for himself for dissenting in the Court’s labour decisions, simply couldn’t help himself here either. He emphasized judicial deference, and again noted that the Canadian jurisprudence on labour law simply didn’t justify the position adopted by the majority,

[105] McLachlin C.J. and LeBel J., writing for a unanimous Court in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, cautioned that

[j]udging the appropriate balance between employers and unions is a delicate and essentially political matter. Where the balance is struck may vary with the labour climates from region to region. This is the sort of question better dealt with by legislatures than courts. Labour relations is a complex and changing field, and courts should be reluctant to put forward simplistic dictums. [para. 85]

Thirteen years later, the majority in this case ignores this sage warning in reaching its conclusion. Our colleagues have taken it upon themselves to determine “the appropriate balance between employers and unions”, despite the fact that this balance is not any less delicate or political today than it was in 2002. In our respectful view, the majority is wrong to intrude into the policy development role of elected legislators by constitutionalizing the right to strike.

Once again, the Court appears to have dispensed of the confusing “derivative” language that has permeated recent labour law decisions. Justice Abella, writing for the majority, stated,

[3] …The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

I can imagine Justice Rothstein, who was joined by Justice Wagner, shaking his head at this statement when responding,

[128] The majority finds that “the right to strike is an essential part of a meaningful collective bargaining process” and that “[t]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right” (para. 3). Such statements expressly contradict the right to meaningful collective bargaining as it was so recently recognized and defined by this Court in Health Services and Fraser.

He also points out that the majority’s language remains confusing and contradictory even in this decision,

[136] Contrary to Fraser, the majority now says that “[t]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right” (para. 3). However, the majority also says that the right to strike is protected simply because “the right to strike is an essential part of a meaningful collective bargaining process” (para. 3). This must mean that the right is indeed derivative — a right to strike is protected only because it derives from the right to collective bargaining, a right which was itself derived from the protection of freedom of association (see Fraser, at paras. 46, 54, 66 and 99). As earlier noted, the result is to inflate the right to freedom of association to such an extent that its scope is now completely divorced from the words of s. 2 (d) of the Charter  themselves.

Of course he’s mostly right, but the problem I’ve mentioned before is that s. 2(d) simply didn’t make sense prior to 2015, and the Court’s restructuring of constitutional labour rights provides a more effective approach that is also comprehensible. What he does not get right, and the part which was adopted by sensationalist headlines, is that the majority did not necessarily constitutionalize the right to strike in this decision.

Although the Act was found unconstitutional in this decision and the Act did not allow for a right to strike, it was the lack of any other meaningful mechanism for dispute resolution which the Court appears to have issue with. The Wagner Model of labour relations was imported into Canada from the U.S. as a trade-off from an unlimited ability to strike. In return, unions gained the ability to have terms of a collective agreement imposed through binding arbitration.

Justice Abella cited Paul Weiler to emphasize the importance of of arbitration,

[93]…

If we pull all the teeth of a union by requiring provision of imperative public safety services, such that any remaining strike option does not afford the union significant bargaining leverage, then I believe the union should have access to arbitration at its option.

In other words, if a legislative scheme incorporated a proper arbitration mechanism instead of the ability to strike, it could theoretically be upheld [paras 4, 93].

Justice Rothstein notes at para 147 that both B.C. Health (paras 102-103) and Fraser (para 41) explicitly stated that no legislative dispute mechanism was required by s. 2(d). Also, Justice Abella’s strong support for the right to strike makes it difficult to envision how this non-strike resolution mechanism could be executed.

Some insight may be gleaned from paras 90-91, where she appears to suggest that continued essential services could still be maintained through collaborative decision-making instead of the unilateral approach employed by the province, and by looking at what particular services each employee is actually providing. Not all essential workers are always essential to a working public sector.

Justice Rothstein did not find this reasoning particularly compelling. He distinguished public employers from those in the private sector, and found that this should be central to evaluating their ability to limit the powers of review by a labour board,

[168] …The Government of Saskatchewan was entitled to determine that compulsory arbitration could thwart the goal of the PSESA: assuring the continued delivery of essential services during labour actions.

Part of the problem with the Act is that workers had no input as to who was an essential worker, and who was not. The Act does not define what are essential services. This is done by regulation, and the board has limited control over these designations,

[13] The Saskatchewan Labour Relations Board has limited jurisdiction to review the numbers of employees required to work in a given classification during a strike, but it has no authority to review whether any particular service is essential, which classifications involve the delivery of genuinely essential services, or whether specific employees named by the employer to work during the strike have been reasonably selected.

The blanket prohibition of striking, combined with the inability to challenge or discuss who was an essential service employee unable to strike, is what made this Act unconstitutional [para 96].

The majority canvassed international law, and the right to strike in a number of different jurisdictions, before coming to its conclusions. Justice Rothstein points out at para 156 that international law is still uncertain on any presumed right to strike, lacks widespread consensus, and would not not be binding given our lack of ratification of these international documents. Where these obligations do become binding, it is the role of the legislature to adopt these obligations, not that of the Court.

I find this rationale of the dissent to be most compelling, especially given the Court’s marked deference to the executive in Khadr. The Court’s role is to review and scrutinize executive and legislative decisions, but particularly in circumstances where vulnerable or marginalized populations are at risk.

Unions still enjoy widespread public support, enjoy stable funding under the Rand formula, and have constitutional protection for their direct involvement in political activities. The same cannot be said for Canadian child soldiers captured abroad, detained by the world’s sole superpower, and subjected to torture with Canadian complicity, in an area of international law where there is far more consensus.

To me, it appears as if the Court’s priorities are misplaced.

The Court also reviewed in this decision the The Trade Union Amendment Act, which made it more difficult to certify unions in Saskatchewan, and easier to decertify. Both the majority and minority agreed this was constitutional, and there was no “excessively difficult” threshold introduced through the legislation. This finding is consistent with recent jurisprudence which emphasizes that the constitutional right is not one to belong to a union.

The right protects an ability to join association with meaningful collective bargaining – and now – a meaningful dispute resolution mechanism. Not a right to strike, as interpreted by the dissent. In some cases, perhaps most cases, this will mean a right to strike – but not always.

The meaning of that, and how it will work outside a Wagner Model, will keep labour law scholars busy, and intrigued, for many years to come.