On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of association also protects the right to strike – and struck down a Saskatchewan law banning “essential services” public employees from striking because it violates this Charter right.

This is the third in a trilogy of SCC decisions in the last two weeks that explains and expands on the Charter’s protection of the right to freedom of association in the labour context. The decisions will impact whether and how the federal and provincial governments enact laws limiting the rights of public sector employees including “essential services employees”, though they have limited practical impact on private sector employers.

In May 2008 two new Saskatchewan laws took effect:

• The Public Service Essential Services Act  limiting the ability of public sector employees designated as “essential services” employees to strike for the purpose of the collective bargaining process; and
• The Trade Union Amendment Act, 2008 changing the union certification process to increase the necessary written support level, reduce the time for written support from employees, and changing employer – employee communications.

The Saskatchewan Federation of Labour and other unions said the freedom of association protected by the Charter includes the right to strike, and both laws violate this right. They urged the SCC to declare the laws invalid.

The majority of the SCC judges agreed that the Charter right to freedom of association protects the right to strike and the Public Service Essential Services Act violated this right and is invalid:

Charter Protection of Right to Strike. The SCC reiterated that the Charter right to freedom of association protects a “meaningful process of collective bargaining”: a process the SCC defined in its January 2015 decision in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 as one that gives employees both enough choice and enough independence to determine and meaningfully pursue their collective interests. The right to strike is an essential part of a meaningful collective bargaining process in Canada’s labour relations system, not just a by-product of it. This protected right to strike applies to all public sector employees – including essential services employees.

Substantial interference.  The Public Service Essential Services Act gave public employers unilateral authority to decide the categories of workers prohibited from striking on the basis they provide “essential services”. Also, it  didn’t provide an alternative means for employees to resolve impasses during collective bargaining. This combination substantially interfered with the employees’ freedom of association. The law went too far beyond what was reasonably needed to make sure essential services are still delivered during a strike, and the SCC declared it invalid as a result. However, the Trade Union Act, 2008 didn’t substantially interfere with these rights, and the SCC declared it valid.

Impact on Private Sector Employers. The practical impact on private sector employers is limited. The Charter only applies to government actions, like making laws, so would only apply if a government (like the provincial government) enacted or changed a labour relations law in a way that violated the right to freedom of association (including the right to strike) of private sector employees. In that case, the union’s recourse would be against the government, by challenging the validity of the law, and not against the private employer. 

Read the SCC”s decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 here. 

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Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour & Employment Team to discuss this topic or any other legal issue.

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