In a landmark decision
, the Supreme Court of Canada ruled Jan. 30 that the right to strike is constitutionally protected. The 5–2 decision in Saskatchewan Federation of Labour v. Saskatchewan found that the Public Service Essential Services Act, which created an absolute ban on the right to strike for unilaterally designated “essential service employees,” infringed on protected charter rights.
The court’s ruling is being heralded as a victory for workers’ rights. “A strike is a last resort, but workers must to be able to collectively withdraw their services to ensure fair and equitable negotiations,” said CAUT president Robin Vose. “This affirmation of the freedom of workers to associate and engage in meaningful collective bargaining gives us all reason to celebrate.”
The long legal battle started in 2008 when the Saskatchewan Federation of Labour challenged the constitutionality of strike-limiting legislation passed by the Saskatchewan government. The trial judge struck down the law, holding that the right to strike was protected by the section 2 freedom of association provisions of the Canadian Charter of Rights and Freedoms. In response, the government took the case to the Saskatchewan Court of Appeal, which reversed the trial judge’s decision and upheld the legislation. The Supreme Court has now struck down the appeal court’s decision and restored the findings of the original trial judge.
The decision represents a continued evolution by the Supreme Court away from earlier decisions in the 1980s where it held that collective bargaining and the right to strike were not protected by the charter. In the face of increasingly extreme actions by governments to limit collective bargaining, the court’s thinking has moved over time to a more robust recognition of workers’ rights.
Justice Rosalie Abella, in writing the decision for the majority of the Supreme Court, described the common-law history of the strike, when collective action by “downing tools” was the only way for workers to compel employers to deal with them fairly. The right to strike was eventually included in the codification of labour laws that emerged in North America in the 20th century. In tracing this history, the court emphasized that the right is not simply a statutory one, but is historic, and essential to the collective achievement of workplace goals. The court held that this history of collective action demonstrates that without the right to strike, there can be no equality in the bargaining process.
In the court’s view, empowerment of workers through collective bargaining goes beyond immediate workplace concerns to protect broader values, including “human dignity, equality, liberty, respect for autonomy of the person and the enhancement of democracy.” The court noted an “emerging international consensus” that collective bargaining is meaningful only if it includes the right to strike.
The court found that a law which limits or restricts the right to strike will violate workers’ charter rights if it substantially interferes with collective bargaining. To be upheld, a limit on the right to strike must be justified by the government. Some limitations on the right to strike will be justified — for example, the government can limit the right to strike of some workers in order to ensure the continued delivery of services that are truly essential for society.
The decision will have impact across the country. At the very least, it means governments must consider workers’ constitutionally-protected rights to collectively bargain and to strike before they introduce broad “back-to-work” or “essential services” legislation, or laws which end work stoppages and do not contain a fair process for settling outstanding bargaining disputes. Any such law will now be subject to charter scrutiny for a determination of whether it substantially interferes with the right to bargain.
The court noted a determination is to be specifically based on the interference with workers’ rights, not on unchallenged employer interests as suggested by the reasoning of the two dissenting judges.
Justice Abella held that “in essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying. It drives us inevitably to Anatole France’s aphoristic fallacy: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread’.”