Saskatchewan’s essential services law struck down as 'unconstitutional'
The Supreme Court of Canada has upheld the right to strike for public sector workers in a landmark decision striking down Saskatchewan’s essential services law.
The provincial government, led by Premier Brad Wall, introduced its controversial essential services legislation shortly after coming to power in 2007.
Under that law, unions and their government employers would need to decide on which public sector employees are considered essential and therefore prohibited from walking off the job (such as those in health care, police and other emergency services).
The right to strike is inherent in our constitution, according to the Supreme Court justices, who voted 5-2 to scrap the legislation.
"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," the court's decision noted.
"Those public sector employees who provide essential services 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."
Now, Wall and his government have one year to redraft the legislation to the Supreme Court’s standard.
The Saskatchewan Federation of Labour legally challenged the legislation in its original form and has been fighting it in the courts, calling the law a violation of an individual’s right to strike under the Charter of Rights and Freedoms.
The victory, according to the federation’s president Larry Hubich, will bolster the labour movement.
"This legislation goes beyond what is reasonable and fair and balanced in the provision of essential services or emergency services," he noted.
"It’s very good, it’s a strong decision. It will set an enormous precedent. Once and for all, the Supreme Court of Canada has said that the right to strike is protected by section two of the charter — and if the government wants to make modifications to that right, then they have to justify it."
In making their decision, the majority judges said freedom of association was a fundamental right, not a derivative one.
"It is not the threat of work stoppage that motivates good
faith bargaining," the decision read.
"It is the statutory duty, and now it is the constitutional duty, not the possibility of job action, that compels employers to bargain in good faith. To say that this constitutional right is meaningless without a concomitant constitutionalized dispute resolution process would be to say that individuals can never vindicate their rights through the courts or other public institutions."
It is for this specific reason that the decision is so groundbreaking, Hubich added.
"(The right to strike) does not flow simply from a worker’s right to engage in collective bargaining, it actually is a fundamental right that forms part of that process."
As the province gears up to change its labour relations legislation, reports pointed to the possibility of invoking the notwithstanding clause, something Hubich said the federation frowns upon.
Should Wall elect to use the clause, he would override the charter citing fundamental freedom and legal and equality rights.
Legislating labour
When it comes to the courtroom, John Mortimer — president of Labour Watch, a union watchdog organization based in British Columbia — said labour has been given a revolving-door treatment.
"For a long time, the Supreme Court said labour law is a creature of Parliament," he said. "Now they’ve decided, ‘No, we’re wrong. Labour law rises from fundamental, inherent human nature.'"
Essential services legislation has long been practised and decried in labour circles. In recent years, Ottawa has legislated back-to-work rules during wildcat strikes at Canada Post and Air Canada, back when it was a Crown corporation.
The trouble with essential services legislation is that one party — in this case, governments as employers — typically goes too far across the line, Mortimer said.
One such way to mitigate extremism would be to implement checks and balances across the relationship with public sector workers. That might include giving provincial labour boards the authority to decide in such disputes rather than leaving it up to the employers.
"We’ll have to wait and see where they’re going to move the goalposts next," he said.
"If the Saskatchewan government had have had interest arbitration or final offer selection, had they had given more authority to the labour to decide the
dispute, rather than the employer getting to unilaterally decide
everything."
