Thursday, March 5, 2015

Canada - The Right to Strike Recognized as a Fundamental Freedom

By Patrick Goudreau and Gabrielle Dumas-Aubin,
DS Welch Bussières LLP, Montréal, Canada

1. Introduction

Section 2 d) of the Canadian Charter of Rights and Freedoms (hereinafter the “Charter”) provides that “[e]veryone has the (…) freedom of association.” Tribunals have interpreted this provision since the incorporation of the Charter in the Constitution in 1982. Recently, its scope has reached a turning point with the decision Saskatchewan Federation of Labour v Saskatchewan (hereinafter “Saskatchewan Federation of Labour”). On the 29th of January 2015, the Supreme Court of Canada ruled (5 judges against 2) that the prohibition against strikes in The Public Service Essential Services Act (hereinafter “PSESA”) violates s. 2 d) of the Charter by interfering in the meaningful process of collective bargaining. In other words, the right to strike currently benefits from a constitutional protection. As concluded by the majority, recognizing the right to strike as being an indispensable component of the collective bargaining would rebalance powers between the employers and employees and overcome the workers’ vulnerability. This essay summarizes the main arguments of the majority and the historic jurisprudential background leading to this decision. It also presents the principal oppositions of the two dissenting judges. In conclusion, it provides an overview of the impacts that Saskatchewan Federation of Labour might have in the future on current labour law legislations.

2. Background

a. The PSESA

At the outset, PSESA has been enacted by the provincial government of Saskatchewan in 2008. It aimed at “limit[ing] the ability of public sector employees who perform ‘essential services’ to strike” by prohibiting them from “participating in any work stoppage against their public employer” and requiring them “to continue the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement.” Following its enactment, Saskatchewan Federation of Labour and other unions reacted immediately by filing a motion against the PSESA to challenge its constitutionality. The trial judge concluded that the prohibition on the right to strike as included and formulated in the PSESA violated s. 2 d) of the Charter. Additionally, he held that the right to strike should be recognized as a fundamental freedom and should benefit from constitutional protection. However, the Saskatchewan Court of Appeal unanimously overruled the trial judge decision and relied on the last decades of Supreme Court decisions which have refrained from granting a constitutional status to the right to strike.

b. Jurisprudential Developments

In the late eighties, three Supreme Court decisions referred as “the Labour Trilogy” firmly rejected granting a constitutional status to the right to strike and concluded that the freedom of association did not protect the right to strike nor the right to collective bargaining. In the more recent decision Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, the Supreme Court underlines the importance of “the right to employees to engage in a meaningful process of collective bargaining” by granting such right a constitutional protection under s. 2 d) of the Charter. In Ontario (Attorney General) v Fraser, the Supreme Court decided again to enlarge the scope of the freedom of association by accepting that “a meaningful process includes employees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have those representations considered in good faith, including having a means of recourse should employer not bargain in good faith”. In the beginning of 2015, the same court held that “a process of collective bargaining could not be meaningful if employees lacked the independence and choice to determine and pursue their collective interests”.

In Saskatchewan Federation of Labour, the majority interprets these jurisprudential developments as moving toward workplace justice, the next logical step being recognizing the constitutional status of the right to strike. On the other hand, the dissenting judges stress that “there is nothing in the concept of collective bargaining as it was defined by this Court [Supreme Court] (…) that would imply that employees have a constitutional right to strike”. In other words, they support the opinion that the majority position is contradicting the recent jurisprudence, which has never included the right to strike as being an indispensable component of collective bargaining.

3. The Majority’s Arguments

The majority recognizes the significance of striking as a tool used by unions to put economic pressure on the employer and tipping the scale on their side in the collective bargaining process. By analysing the historic and international significance of the right to strike, the Court came to the conclusion that the right to strike is protected by s. 2 d) of the Charter “by virtue of its unique role in the collective bargaining process.”

Consequently, they conclude that the prohibition of employees performing essential services to strike as formulated in PSESA violates the freedom of association. Following such an assertion, the Supreme Court addresses the determinative issue as to whether the means chosen by the Saskatchewan government are justifiable in a free and democratic society. To answer this question, the majority analysed that if the said means are “carefully tailored so that rights are impaired no more than necessary”.

In addressing this question, the Court discussed the distinctiveness of the public sector’s collective bargaining process as the PSESA applies restrictions specifically to public sector employees who provide essential services: “When ‘public’ employees strike, the pressure exerted on the employer is not largely financial, as in the private sector, but rather arises from the disruption of services upon which society depends for the daily activities of its members.” Such distinction between the private and public sector is essential. In the public sector, the interests of a third actor, the public, are to be taken into consideration in the collective bargaining process and can complicate or burden the dynamic between the employers and employees.

The majority also examines the broad concept of “essential services” which is a crucial one in the implementation of the PSESA. At the outset, “essential services” should be defined as “one the interruption of which would threaten serious harm to the general public or to a part of the population.” In other words, there is an important distinction to be made between essential services and services provided by the public sector.

The majority concludes that the means chosen by the Saskatchewan government are not minimally impairing the freedom of association because of the unilateral discretion of the employer to decide which workers will have their right to strike revoked: “ (…) s. 9 (2) [of the PSESA] gives a public employer the unilateral authority to dictate whether and how essential services will be maintained, including the authority to determine the classifications of employees who must continue to work during the work stoppage, the number and names of employees within each classification, and, for public employers other than the Government of Saskatchewan, the essential services that are to be maintained.” Such discretion is interpreted by the Court as creating a wider gap in the balance of powers between employees and employers.

Moreover, as stressed by the majority, another crucial element lacking in the PSESA is a meaningful alternative mechanism for resolving bargaining impasses. Indeed, a “no strike legislation” should provide “a safety valve against an explosion buildup of unresolved labour relations tension.” As mentioned by the trial judge, the prohibition to the right to strike as formulated in the PSESA is particularly broad in comparison with other essential services legislations in Canada aiming at the same objective i.e. limiting the rights to strike of essential services employees. Indeed, many essential services legislations include an alternative mechanism for resolving collective bargaining disputes. The lack of alternative mechanism is mainly what led the Court to conclude that not only the PSESA was violating s. 2 d) of the Charter but also that it was impairing with the “rights of designated employees much more widely and deeply than is necessary to achieve its objective of ensuring the continued delivery of essential services.”

4. The Dissidence

As mentioned above, the dissenting judges maintain that the right to strike as an indispensable element of the collective bargaining contradicts the recent decisions of the Supreme Court. They add that the right to strike has been qualified as an essential part to the right to collective bargaining, which is in itself is a derivate from the protection of freedom of association, “inflate[s] the right to freedom of association to such an extent that its scope is now completely divorced from the words of s. 2(d) of the Charter themselves.”

As to the specificity of the workplace justice in the public sector, the dissenting judges stress that “[p]ublic sector labour disputes are unique in that any additional expenditures incurred to meet employee demands will come from public funds.” Moreover, they underline that the governments need to have the necessary flexibility and freedom to enact legislations able to take into consideration the interests of the employers, the employees and the public without upsetting the delicate balance between those actors. Also, the dissenting judges state that the threat of work stoppage is most likely not a motivating argument for employers to bargain in good faith.

Finally, the dissenting judges claim that the majority has surpassed the judicial scrutiny role of the Supreme Court: “The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches.” They reiterate, “that it is the role of legislators and not judges to balance competing tensions in making policy decisions.”

5. Conclusion

This decision brings back into the spotlight the constant debate regarding the limits and the role of judicial scrutiny. The dissidence restates that the role of the court of interpreting the rights and freedoms of the Charter has to be considered in perspective relative to the importance of maintaining a balance between the legislative and the judicial branches. On the other hand, as stated in a recent article, what has been called “government by the judges” is essential in ensuring that governments do not take disproportionate actions against minorities.

Finally, it is early to be able to assess the real consequences of Saskatchewan Federation of Labour on the collective bargaining process in public sector. Changes in Canadian legislation restricting to the right to strike for the public sectors employees should be expected. However, not all legislation restricting the right to strike might be affected in the same way by the decision. Considering the uniqueness of the restriction in PSESA, one could argue that other prohibitions against strikes in federal or provincial legislation, although in violation of s. 2 d) of the Charter, are still justifiable in a democratic society as they are choosing the appropriate means for not impairing more than is necessary.

Nevertheless, it is undeniable that this decision will have a considerable impact on tipping the scale on the employees’ side in the collective bargaining process in the public sector at a municipal, provincial and federal level. By having the right to strike being recognized a constitutional status and being granted the protection of the Charter, Canada has definitely reached a milestone.