Right to Strike Supreme Court of Canada

international labor rights case law 1 (2015) 177-189 brill.com/ilarc

Right to Strike ∵

Supreme Court of Canada – 30/1/2015 – Saskatchewan Federation of Labour v. Saskatchewan

Decision-making body: Supreme Court of Canada. Case details: Saskatchewan Federation of Labour v. Saskatchewan, 30th January 2015. Applicable legal provisions: Canadian Charter of Rights and Freedoms Primary legal issues: Freedom of association; Right to strike. Related cases: Dunmore v. Ontario (Attorney General), 2001 SCC 94; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; Ontario (Attorney General) v. Fraser, 2011 SCC 20. Link to case: https://SCC-CSC.lexum.com/SCC-CSC/SCC-CSC/en/item/14610/ index.do.

Summary

In 2007, the Saskatchewan government introduced the province’s Public Service Essential Services Act (PSESA) in response to strikes by highway workers, snow-plough operators and corrections officers. The PSESA prevented a wide range of public sector employees from striking. It prohibited ‘essential service employees’ from ‘participating in any work stoppage against their public employer’. A 5–2 majority of the Supreme Court of Canada held that there is a constitutional right to strike, even for certain services that the government deems essential. The Supreme Court ruled that the right to strike is guaranteed by freedom of association, which is a fundamental freedom under section 2(d) of the Canadian Charter of Rights and Freedoms.

Decision

[…]

In December, 2007, the newly elected Government of Saskatchewan introduced two statutes: The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (PSESA), and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26, which became law in May, 2008. The PSESA is Saskatchewan’s first statutory scheme to limit the ability of public sector employees who perform essential services to strike. It prohibits unilaterally designated “essential service employees” from participating in any strike action against their employer. These employees are required to continue the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement. No meaningful mechanism for resolving bargaining impasses is provided. The Trade Union Amendment Act, 2008 changes the union certification process by increasing the required level of written support and reducing the period for receiving written support from employees. It also changes the provisions dealing with communications between employers and their employees. In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESA and The Trade Union Amendment Act, 2008. The trial judge concluded that the right to strike was a fundamental freedom protected by s.2(d) of the Canadian Charter of Rights and Freedoms and that the prohibition on the right to strike in the PSESA substantially interfered with the 2(d) rights of the affected public sector employees. He also found that the absolute ban on the right to strike in the PSESA was neither minimally impairing nor proportionate and there- fore was not saved by s.1 of the Charter. The declaration of invalidity was suspended for one year. On the other hand, the trial judge concluded that the changes to the certification process and permissible employer com munications set out in The Trade Union Amendment Act, 2008 did not breach s.2(d). The Saskatchewan Court of Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect to the constitutionality of the PSESA. The appeal against the finding that The Trade Union Amendment Act, 2008 did not violate s.2(d) of the Charter was dismissed. […]

international labor rights case law 1 (2015) 177-189