CAPE is pleased with the Supreme Court of Canada’s January 30 decision recognizing that the right to strike is an essential part of a meaningful collective bargaining process. The Court ruling means this right is now protected under the Canadian Charter of Rights.
In the words of Justice Rosalie Abella, who wrote the majority decision, “[t]he 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.”
The case before the Supreme Court concerned Saskatchewan’s Public Service Essential Services Act (PSESA), a statute adopted in 2008 that effectively limited the ability of provincial public sector employees to strike.
The Court held that, “[w]here strike action is limited [by statute] 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.” The Justices thus reasoned that workers must have access to a dispute resolution mechanism. Saskatchewan had refused to include in its legislation a provision allowing access to arbitration for workers affected by the statutory limitation of their right to strike. Later in its decision, the Court stated that “[b]ecause Saskatchewan’s legislation abrogates the right to strike for a number of employees and provides no such alternative mechanism, it is unconstitutional.”
CAPE President Emmanuelle Tremblay believes “it is clear that there are many similarities between the Saskatchewan legislation just declared unconstitutional by the Supreme Court and the changes to the Public Service Labour Relations Act (PSLRA) brought about by the Second act to implement certain provisions of the budget of 2013.” “In both cases,” she added, “there is a statutory limitation placed on the right to strike.” The amended PSLRA stipulates that the federal government “has the exclusive right to determine whether any service, facility or activity of the Government of Canada is essential because it is or will be necessary for the safety or security of the public or a segment of the public.” Ms. Tremblay pointed out that, in CAPE’s estimation, “this provision has been invalidated by the Supreme Court ruling because it infringes the right to strike.”
CAPE will be taking a close look at what impact this Supreme Court decision will have on the current collective bargaining process for its EC and TR group members. At this time, however, we would urge Treasury Board to review the provisions of the Second act to implement certain provisions of the budget of 2013 affecting the right to strike and to immediately make whatever changes are necessary to restore the integrity of the bargaining process in light of this Supreme Court judgement.
“This decision by the Supreme Court, in the wake of its recent judgement granting RCMP members the right to form a union,” Ms. Tremblay added, “is a stark reminder to the Conservative government that, while its anti-union agenda may be designed to please the reactionary elements of its electorate, it clearly does not respect the fundamental rights of Canadians. A government blinded by its own ideology cannot take away people’s fundamental rights, and the Supreme Court has eloquently reminded the Conservative government of this fact.”
CAPE also took note of the other issue covered in this Supreme Court decision, namely the level of employee support required for the decertification of a union. Saskatchewan reduced that level to 45% in legislation which the Court deemed to have passed constitutional muster; meanwhile, in Bill C-525, the federal Conservative government set the required level of employee support for decertification at 40%. In the Court’s view, such statutory requirements are not so excessive as to prevent the formation of unions.
“For Canadian unions,” Ms. Tremblay concluded, “the Court’s ruling on this issue means that the battle to restore the balance of employer-employee relations will now have to be fought in the political arena and not in the courts. The lead-up to the coming federal election will reveal what federal parties are in favour of making it easier for workers to gain access to union representation. Several recent economic studies have shown that union coverage constitutes one of society’s best defences against growing economic inequality.”
Analysis of the ruling
Sack Goldblatt Mitchell LLP, which represented the Professional Institute of the Public Service of Canada and the Canadian Labour Congress before the Supreme Court in this case, has published an analysis of the ruling, which can be read on the SGM website.
