On January 30, 2015, the Supreme Court of Canada rendered a major decision on the constitutional freedom of association in the workplace. It has especially challenged a law adopted in 2008 in Saskatchewan which sought to restrict the right to strike of certain employees.
In 2008, Saskatchewan adopted a law limiting the right to strike in the public sector, after having experienced strong social movements in the fields of health, roads and correctional services. This law was aimed at ensuring the maintenance of “essential services” in case of a strike by its employees.
The mechanism for maintaining them is simple. First, the employer and the union must agree on the “essential services” to be maintained, the categories, number and names of the employees. Where the employer is the government, a regulation is supposed to determine in advance a certain level of services. In the hospital sector, it amounts to 90% of salaried employees, for example. If the two parties fail to agree, it is the employer who determines these “essential services”.
An unconstitutional law
However, the Supreme Court of Canada has just ruled that this law, called The Public Services Essential Services Act (PSESA), is unconstitutional, since it infringes on employees’ fundamental freedom of association. In practise, the Court held that there is no neutral mechanism to designate essential services and arbitrate disputes between employees and their employer.
With this decision, Justice Abella, who wrote the judgement, said for the first time that the right to strike is a constitutional right: “without the right to strike, the constitutional right to negotiate collectively becomes meaningless.” She continues, “The right to strike is not only derived from collective negotiation, it is an essential component. The time seems to have come to consecrate it constitutionally.” Enshrined in the Canadian Charter of Rights and Freedoms, the freedom of association is therefore once again recognized and protected by the Supreme Court.
Consequences for the right to work
By reasserting this fundamental right, the highest court in Canada has rebalanced the forces which can compete in negotiations between employers and unions. In the medium term, this decision will have repercussion to labour law in all provinces. It will also oblige governments that are working on laws obliging return to work to find a better mechanism to guarantee the balance of powers during the process of negotiations.