Supreme Court Confirms Right to Strike Constitutionally Protected

by & Christina Catenacci

For some, this decision took a long time to arrive.

The Supreme Court of Canada in Saskatchewan Federation of Labour v Saskatchewan confirmed once and for all that the right to strike is protected under the Canadian Charter of Rights and Freedoms. This landmark decision strikes down Saskatchewan’s essential services legislation, which prevented a wide range of public sector employees from striking. This decision does not conclude that all essential services legislation that imposes limits on strike action will be unconstitutional; however, it will have an impact on the future of labour relations across Canada.

Background

First Reference has been following this saga here (trial decision) and here (appeal decision).

To summarize, the Saskatchewan Federation of Labour challenged Saskatchewan’s Public Service Essential Services Act (PSESA) and the Trade Union Amendment Act, which came into force May 14, 2008, alleging both pieces of legislation violated section 2(d) of the Charter, which protects freedom of association and expression.

The purpose of the PSESA was to limit the ability of public sector workers to go on strike. The Act set out a process whereby some workers such as nurses and ambulance attendants can be declared essential and banned from going on strike.

Under the PSESA, the union and the public employer would have the opportunity to negotiate an “essential services agreement,” but if they could not reach agreement the employer was allowed to set the terms of who was too “essential” to strike. In addition, the law does not give employees an adequate dispute resolution process whereby they can challenge which employees are designated as essential.

The Trade Union Amendment Act amended the Trade Union Act in two ways.

First, it altered the manner in which a trade union received and lost its status as the exclusive bargaining representative of employees. For instance, to certify a union, the support required went from signing support cards by at least 25 percent of employees within six months of the application to 45 percent of employees within three months of the application and by secret ballot. Also, to decertify a union, the minimum level of employee support (by secret ballot vote) changed from 50 percent plus one to 45 percent, and support cards had to be signed within three months instead of six months.

Second, it altered a provision dealing with communications by employers to employees. For example, there was a phrase added to the provision to prevent employers from interfering with employees exercising their rights under the Act, “but nothing in this Act precludes an employer from communicating facts and its opinions to its employees.”

The Saskatchewan Court of Queen’s Bench concluded that amendments to the PSESA impeded workers from exercising their fundamental freedom of association, which includes the right to associate and organize, the right to bargain collectively, and the right to strike. Relying on a decision of the International Labour Organization, the Court found that the Act completely and utterly violated section 2(d) of the Canadian Charter of Rights and Freedoms. The Court gave the government one year to amend the legislation, but instead, it appealed the ruling. On April 26, 2013, the Saskatchewan Court of Appeal upheld amendments to the PSESA and ruled that whether or not the Charter protects a right to strike is a matter that should be left to the Supreme Court of Canada to decide.

With regard to the Trade Union Amendment Act, the Court noted the government’s purpose for making the amendments was to make Saskatchewan competitive with other Canadian jurisdictions. Moreover, it concluded that, though the effect of the certification and decertification changes was to reduce the success rate of unions, this was not the question. The issue from a Charter perspective was whether the law protected individual employees’ freedom of association. Also, the provision regarding communications with employees had to be interpreted as a declaration that employers could communicate with employees in a way that did not infringe on their ability to collectively bargain in accordance with their free wishes. Thus, the provisions in the Trade Union Amendment Act did not infringe on the freedom of the employees to organize or bargain collectively through a union of their own choosing. They did not interfere with the employees’ freedoms under the Charter.

The union appealed the case to the Supreme Court.

It is important to note that in 1987, the Supreme Court of Canada decided three cases (referred to as the Labour Trilogy) in which it ruled that there was no constitutional right to strike since that right is a “creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise.” The Court was split on many points—even on the question of whether the right to freedom of association in the Charter implied a right to collective bargaining. The Court leaned toward a narrow view that freedom of association was an individual right that did not confer any rights to the union that was formed through the act of association.

As stated by Asher Honickman, a Toronto-based lawyer at Matthews Abogado and president of the Advocates for the Rule of Law, in 1987, Justice McIntyre debated the historical meaning of freedom of association as essentially being the freedom to do collectively what one has a right to do individually. Like all freedoms set out in section 2, freedom of association belongs to the individual; it does not vest independent rights in the group. Since the Labour Trilogy, the law evolved. Beginning in 2001 (with Dunmore v. Ontario), the Supreme Court began to chip away at the Labour Trilogy precedent, all the while maintaining that the decision remained good law—up till today that is.

Supreme Court of Canada decision

At the Supreme Court, Justice Abella wrote for the five -judge majority in favour of the unions. Justice LeBel wrote dissenting reasons for himself and Justice Wagner. The Supreme Court declared the PSESA to be unconstitutional for the following reasons:

  • The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. That right is not just a derivative of collective bargaining, but rather, an indispensable component of that right. Striking is the “powerhouse” of collective bargaining. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.
  • Since 2001, the Supreme Court has made previous decisions that recognized Charter values (including human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy) and supported the protection of the right to a meaningful process of collective bargaining within the scope of section 2(d) of the Charter. This was made clear in the BC Health Services case.
  • The right to strike is essential to realizing these values as well through a collective bargaining process because it allows workers to withdraw their labour in concert when collective bargaining reaches an impasse. Strikes allow workers to, through collective action, refuse to work under imposed terms and conditions. This collective action at the moment of impasse represents an affirmation of these values.
  • Further, Canada’s international human rights obligations require the protection of the right to strike as part of a meaningful process of collective bargaining. Canada is a party to international instruments which clearly protect the right to strike. There is also no question that protection of a right to strike is recognized in international law (that is, the protection exists in many of the countries with labour laws outside the American Wagner Act model).
  • Given the historical, international, and jurisprudential context, it is clear that the ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is the irreducible minimum of the freedom to associate in Canadian labour relations as protected under section 2(d) of the Charter. The Court is entitled to depart from the narrow interpretation of section 2(d) of the Charter set out in the Labour Trilogy and conclude that the right to strike is protected under section 2(d) of the Charter.

The PSESA infringes on section 2(d) of the Charter

The test to determine whether the PSESA infringed section 2(d) of the Charter is whether it “substantially interfered” with the right to strike, and moreover, whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining.

When applying the test to this case, it was clear that the prohibition in the PSESA on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment amounted to a violation of section 2(d) of the Charter. The PSESA prevented designated employees from engaging in any work stoppage as part of the bargaining process.

It was necessary to decide whether this breach was justified under section 1 of the Charter. In this case, the breach was not justified for the following reasons.

Although the first part of the test could be met because the maintenance of essential public services is a pressing and substantial objective, the second part of the test could not be met. This is because the means chosen by the government were not minimally impairing; they were in no way carefully tailored so that rights were impaired no more than necessary. Relating to minimal impairment, just because the service is provided by the public sector, this did not mean it is considered “essential.” In the PSESA, the public employer has the unilateral authority to dictate whether and how essential services will be maintained, including the authority to determine the classifications of employees who have to continue to work during the work stoppage, the number and names of employees within each classification, and, for public employers other than the Government of Saskatchewan, the essential services that are to be maintained.

Not much is subject to a review either, only numbers of employees who have to work during the stoppage. What is more, the PSESA does not tailor work responsibilities to the performance of essential services alone. The provisions of the PSESA therefore go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.

Furthermore, there is no access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration. Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it is to be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. The employees involved still have the right to a less disruptive mechanism when collective bargaining reaches an impasse.

The combination of the unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage, combined with a lack of an adequate review mechanism and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, can only lead to the conclusion that the PSESA is not minimally impairing—and so it is unconstitutional.

When commenting on how restrictive the legislative provisions were, the Court stated, “Quite simply, it impairs the section 2(d) rights of designated employees much more widely and deeply than is necessary to achieve its objective of ensuring the continued delivery of essential services.”

Justice Abella further stated:

The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives (Fudge and Tucker, at p. 334). The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.

[…]

Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. In this case, the suppression of the right to strike amounts to a substantial interference with the right to a meaningful process of collective bargaining.

Thus, the unions’ appeal is allowed with costs and the PSESA is declared unconstitutional because it infringes section 2(d) of the Charter and cannot be justified under section 1 of the Charter. However, the Court suspended the declaration of invalidity for one year to allow the Saskatchewan government time to revisit the Act.

The two dissenting justices, Richard Wagner and Marshall Rothstein, said that enshrining the right to strike restricts the government’s flexibility in labour relations.

In regard to the Trade Union Amendment Act

The Supreme Court of Canada agreed with the trial judge and the Court of Appeal that the amendments that were introduced in this piece of legislation were not unconstitutional. This was because the Act does not substantially interfere with the freedom to freely create or join associations. In fact, it was noted that the trial judge compared the statute to other Canadian labour relations statutory schemes, and found that these requirements were not an excessively difficult threshold to meet such that the workers’ rights to associate were substantially interfered with.

In fact, the Supreme Court of Canada agreed with the trial judge that allowing an employer to communicate its facts and opinions to employees did not strike an unacceptable balance as long as the communications are done in a way that does not infringe upon the ability of the employees to engage their collective bargaining rights in accordance with their freely expressed wishes.

This decision was upheld and it was confirmed that the Trade Union Amendment Act does not violate section 2(d) of the Charter.

To that end, the union’s appeal regarding this statute was dismissed without costs.

Reactions to the decision

Reactions to the decision appear very positive. For instance, The Canadian Union of Public Employees was very pleased, as can be seen by the comments of Paul Moist, national president:

“The ability of workers to go on strike is a fundamental part of collective bargaining; a corner stone of our free and democratic society. It is extremely important to have the highest court in our country recognize this as a right of all workers, private and public sector alike…No union ever wants a strike, but without the right to strike, employers have an unfair advantage. This decision secures a balance between workers and employers in negotiations.”

Similarly, National Union of Public and General Employees President James Clancy stated:

“This is a great day for all of us. Our chief justices understand that unions matter to our country and our communities, and they’ve made sure that Canadian politicians will no longer be able to so easily strip Canadians of their union rights.”

Furthermore, Robyn Benson, Public Service Alliance of Canada National President stated:

“This is an important victory for all working people…We congratulate the Saskatchewan Federation of Labour for its tireless fight for workers’ rights across the country.”

What does this mean going forward?

Plainly put, just as there is a constitutionally protected right to collective bargaining under section 2(d) of the Charter, there is also a constitutionally protected right to strike protected under section 2(d) of the Charter.

Legally, we can say goodbye to the Labour Trilogy, and instead confirm that the famous Dickson dissent (abridge version written by Professor David Doorey, York University January 29, 2015, In PDF) was the correct decision all along. Several cases helped to get us to this point, including the famous BC Health Services case. One may question whether the Fraser decision needs to be revisited after this recent Supreme Court of Canada decision; Abella made a very strong dissent in that decision, which flowed logically with the one made in the present case, Saskatchewan Federation of Labour.

Practically, what this means is, a complete statutory ban on the right to strike will now violate section 2(d) of the Charter, and the analysis will turn to section 1 of the Charter, questioning whether the infringement is justified. The section 1 analysis will include an assessment of whether there is an adequate dispute resolution process (such as independent interest arbitration) when workers’ right to strike is limited.

The main lesson here is, statutory actions taken by governments (with quite obvious anti-labour motives) that unquestionably deny the right to strike are very likely to be struck down, as these actions will likely not be able to be justified. As for the Saskatchewan government, it looks like it is back to the drawing board to create a more appropriate piece of legislation to maintain essential services during work stoppages.

The Saskatchewan government stated that they will examine the legislation in light of the SCC decision to see if further changes are required.

Comments

  1. David Collier-Brown

    While informed comment was positive, expect political commentators to attack the court for having “made law”.

    I can well understand the government of the day or a proponent of Parliamentary Supremacy being unhappy with our constitution and our courts, but, like King John at Runnymede, they need to get over it and just learn to live within the law.

  2. The only reactions to the decision mentioned are from unions. It is no surprise that they would be pleased. They are not the only ‘informed’ comment, probably.And there was a dissent about the need for governments to be able to manage public funds in very hard times. The Court seems to allow a ban on strikes if there is another way to resolve differences, notably by arbitration. But allowing or directing arbitrators to take into account the public employer’s ability to pay is not well received by unions either. So it gets difficult…

  3. David, do you think the charge of “making law” doesn’t have some validity when the Court holds, some 28 years later that what previously was specifically found not to be a fundamental right is now a fundamental right, on the basis of language which hasn’t been amended or revised in the meantime. The dissent seems to think so, calling it an express contradiction of a previous ruling and an indeterminate expansion of the Charter:

    “[147] However, a finding that there is a constitutional right to strike (or to an alternative statutory dispute resolution process), is an express contradiction of this Court’s ruling in Fraser that s. 2(d) of the Charter does not require a statutory dispute resolution process (para. 41). While s. 2(d) jurisprudence has evolved since 1987, such changes cannot be used to justify contradicting the decisions that brought about these very same changes.

    [148] Even more puzzling, the majority claims that the Court affirmed in Fraser that a meaningful process under s. 2(d) of the Charter must include some “means of recourse should the employer not bargain in good faith” (para. 29). They do so despite explicit language to the contrary in that case (see Fraser, at para. 41). In misinterpreting the content of Fraser, our colleagues overrule that decision without acknowledging that they are doing so.

    [149] The more “generous approach” to s. 2(d) of the Charter, referred to by the majority at para. 33, does not license this Court to indeterminately expand the scope of freedom of association. In imposing constitutional limitations on the legislature in this case, the majority disregards stare decisis and the certainty and predictability it is intended to foster. ”

    Also can you expand on your Magna Carta reference? I’m not sure that King John at Runnymede is a great example of learning to live within the law (or of someone who ought to have lived within the law) given that the law you are presumably referencing was one imposed on the law making authority during a civil war on threat of further violence, subsequently held to have been void due to the threat of violence by the party both sides had previously chosen to arbitrate their dispute, and was only partially reinstated by the eventual victors of the civil war.

    Presumably ‘living within the law’ would have meant the rebel baron’s accepting the status quo and paying their taxes to their absolute monarch to fund further wars in France.

    (This per my very limited recollection and the questionable source that is wikipedia, so happy to be enlightened).

  4. Josie,
    I’d be interested in hearing how you would respond to my previous commentary on the case with a slightly different take.