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Supreme Court strikes down Saskatchewan law that prevents right to strike

strike
In Saskatchewan Federation of Labour v Saskatchewan, the Supreme Court of Canada has struck down as unconstitutional a Saskatchewan law that prevents public sector employees from striking.

By a 5-2 majority, the high court granted an appeal by the Saskatchewan Federation of Labour of the province's controversial essential services law that restricts who can strike.

The ruling will affect public service unions in provinces across the country. Last April, Nova Scotia enacted its own essential services law for health care workers, joining Newfoundland and Labrador and British Columbia as provinces that have essential services laws.

The Supreme Court also gave Saskatchewan one year to enact new legislation.

After winning power in 2007, the Saskatchewan Party introduced the new law, which says employers and unions must agree on which workers are deemed essential and cannot legally strike.

If the two sides can't agree, the government gets to decide who is an essential worker.

Writing for the majority, Justice Rosalie Abella said that power violated section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association.

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

The Saskatchewan law came after some high-profile labour unrest in Saskatchewan, including a strike by thousands of nurses in 1999 and another by highway workers and correctional officers in late 2006 and early 2007.

Court challenges began in 2008 after the law was enacted, and the Regina Court of Queen's Bench struck it down as unconstitutional in February 2012.

The court did uphold the principle of essential services and gave the government 12 months to fix the law.

The Saskatchewan Court of Appeal overturned the lower court ruling in 2013, so the labour federation appealed to the Supreme Court.

The Supreme Court has now reversed that appeal.

"Given the breadth of essential services that the employer is entitled to designate unilaterally without an independent review process, and the absence of an adequate, impartial and effective alternative mechanism for resolving collective bargaining impasses," wrote Abella, "there can be little doubt that the trial judge was right to conclude that the scheme was not minimally impairing."

Wagner and Rothstein disagreed.

"The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees, and the public," they wrote in their dissent.

"Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained."

Today's ruling comes after just two weeks after the Supreme Court's landmark labour relations ruling in a case involving rank and file officers of the RCMP.

The Supreme Court overturned a previous ruling of its own from the 1990s which upheld an exclusion that barred the Mounties from forming unions like federal public servants, who gained the right to collective bargaining in the late 1960s.

The ruling did not explicitly state that RCMP members have the right to form a union, but the justices effectively cleared a path to that possibility. As with today's ruling, the high court gave the federal government one year to create a new labour relations framework with the RCMP.

The RCMP ruling did not address the right to strike.

From the 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 thes. 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 therefore 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 communications 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."

The SCC held (5:2) with 2 judges in partial dissent that the appeal with respect to the PSESA is be allowed; the prohibition against strikes in the PSESA substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2 (d) of the Charter; the infringement is not justified under s. 1; the declaration of invalidity is suspended for one year; and the appeal with respect to The Trade Union Amendment Act, 2008 is dismissed.

Justice Abella wrote as follows (at paras. 2-4, 25, 56):

The question in this appeal is whether a prohibition on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment amounts to a substantial interference with their right to a meaningful process of collective bargaining and, as a result, violates s. 2 (d) of the Charter . The question of whether other forms of collective work stoppage are protected by s. 2 (d) of the Charter is not at issue here.

The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:
The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter.
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.

This applies too to public sector employees. Those public sector employees who provide essential services undoubtedly have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, but they do not argue for no mechanism at all. Because Saskatchewan’s legislation abrogates the right to strike for a number of employees and provides no such alternative mechanism, it is unconstitutional.



Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter . In my view, the failure of any such mechanism in the PSESA is what ultimately renders its limitations constitutionally impermissible.



In their dissent, my colleagues suggest that s. 2 (d) should not protect strike activity as part of a right to a meaningful process of collective bargaining because “true workplace justice looks at the interests of all implicated parties” (para. 125), including employers. 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.”

Justice Rothstein and Wagner (dissenting in part) wrote as follows (at paras. 105-106, 107):

" 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.


…The majority (at para. 1) now casts off these and other precedents and injects a one-sided view of “workplace justice” into s. 2 (d) of the Charter . The majority has so inflated the right to freedom of association that its scope is now wholly removed from the words of s. 2 (d).

...

The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees, and the public. Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained. We are compelled to dissent. "


Note: The summary is a reprint of a CBC News article. The body is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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