The right to strike

By Stéphane Lacoste Web Only

The Supreme Court’s recent right-to-strike ruling marks a more fundamental and long-lasting change in labour relations than we might think.

The right to strike

Labour Day Parade Toronto September 2011" by CAW Media. Licensed under CC BY 2.0

The Supreme Court of Canada recently issued a ground-breaking decision. The effect of Saskatchewan Federation of Labour v. Saskatchewan v. Saskatchewan has already spurred a litany of literature, but few commentators or journalists have truly grasped the ramifications of this case’s effects.

The case centred on a law passed by Saskatchewan’s government to prevent duly recognized unions from launching a strike in the public sector where the public employer has designated services as “essential.”

In a split 5-2 ruling, the Supreme Court overturned a 1987 decision that refused to acknowledge that the right to strike was protected under the Charter.

Justice Abella, writing for the majority, said striking was an integral part of our democracy and that “the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining”. In that case, the restriction on the right to strike infringes freedom of association and will therefore be saved only if it is justified in a free and democratic society under section 1 of the Canadian Charter.

In applying this test, Justice Abella recognized that the maintenance of essential public services is self-evidently a pressing and substantial objective. However, once the case has been made, the legislator must still demonstrate that the means chosen minimally impair freedom of association, “that is, carefully tailored so that rights are impaired no more than necessary”, which is where the Government of Saskatchewan has failed.

For the majority, the law went too far because it allowed the public employer to determine which services were essential.  What’s more, it offered no other meaningful dispute resolution mechanism between the parties.

Put simply, the Court decided that lawmakers could in no way restrict the right to strike except to impose the maintenance of essential services, defined as those services needed to protect the environment or the public’s health and safety. Even then, a third party must be entrusted with the task of determining what those essential services are and the power to impose an independent arbitration mechanism for disputes between unions and employers.

Most commentators and journalists were quick to acknowledge the importance of the SFL case in the public sector, but it may have an even bigger impact in the private sector.

Even if everyone recognizes that it is normal to restrict the right to strike in essential public services, the same standard has not been applied in the private sector.

All too often, governments have used laws to end strikes and force a return to work in the private sector. In most cases, the acts provide for an arbitration process (which, depending on the case, can be open, supervised or final offer arbitration) or impose working conditions (as is the case in the construction industry in Quebec for example). That was also the case during labour disputes at Canada Post, Air Canada and Canadian Pacific. As a matter of fact, there are cases presently before the courts challenging the constitutionality of such acts.

Now with the SFL ruling, it’s clear that these acts are unconstitutional and do not meet the section 1 test. They do not relate to public health and safety, but rather convenience, the economy, comfort or economic stability. There may of course be rare and limited cases where businesses provide services that are essential to health and safety, but, in such cases, no law could be justified except where it is limited to maintaining those services exclusively and where it provides for open arbitration of disputes (I do not believe final offer arbitration would pass the test, nor would the imposition of working conditions through legislation).

The Supreme Court is very strict in its definition of what constitutes an essential service. I am convinced, for example, that no government can simply declare that hospitals provide essential services to justify banning employees who wash dishes from going on strike, if the service could be provided by managers or sub-contractors, or be replaced by disposable dishes. Patient care is an essential service, but window washing or the provision of a parking attendant is not, for example. Public transit is not an essential service either.

This means that Parliament can no longer prevent Canada Post, Air Canada and Canadian Pacific employees from going on strike if they want to. The same goes for the National Assembly of Québec, which can no longer put an end to strikes in the construction industry.

Governments must stop threatening workers and unions with putting an end to strikes, because they no longer have the power to do so. In my opinion, if such a law were passed, it should immediately be suspended by a preliminary injunction to maintain the balance between the parties, which the Supreme Court has deemed essential.

In the war on unions, governments have been severely disarmed: they have been stripped of the nuclear weapon that is the return-to-work act.

We must now face the full measure of the impacts this change will have and plan for the future evolution of labour relations in Canada.

Stéphane Lacoste is General Counsel with Teamsters Canada.

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