Workplace Wire

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Does the Charter guarantee a right to strike?


Does the Charter guarantee a right to strike?  The Saskatchewan Court of Queen’s Bench just declared that it does.  However in reaching that conclusion, it may have turned a blind eye to the Supreme Court of Canada’s recent decision in Fraser v. Ontario, which ruled that s. 2(d) of the Charter of Rights and Freedoms does not guarantee any particular model of collective bargaining.

In Saskatchewan Federation of Labour v. Saskatchewan, at issue was certain provisions of essential services legislation that allowed the government to unilaterally deem particular public workers’ services as “essential”, thus prohibiting strike action at the end of the bargaining process.  The Saskatchewan Federation of Labour argued this infringed employees’ freedom of association, and, surprisingly, the court agreed.

The judge held that his conclusion was not inconsistent with the Supreme Court’s recent cases on the ambit of s. 2(d) and collective bargaining, namely BC Health Services (2007) and Fraser (2011).  Notably, in both cases the Supreme Court pointedly avoided the issue of whether s. 2(d)’s protection of collective bargaining extended to the right to strike.

In BC Health Services, the Supreme Court found that the right to bargain collectively is protected by the Charter (an overturning of previous Supreme Court cases on this point). Fraser, however, examined how far that protection extends, and suggested that the Court was pulling back from broad statements made in BC Health Services.  Specifically, the Court confirmed that the protected right under s. 2(d) was the right to associate and make representations to an employer collectively, but was not a right to any particular model of collective bargaining.

In light of the limits placed by Fraser on the constitutionally protected aspects of collective bargaining, it was unexpected that the Saskatchewan court would find that the ability to strike was a “corollary” of a meaningful right to bargain collectively, and therefore must be constitutionally protected.  The judge further claimed it was a “reality” that “devoid of the right to strike, a constitutionalized right to bargain collectively is meaningless.” Both of these statements seem contrary to the basic proposition in Fraser that the constitution does not protect particular models of bargaining, nor does it provide for particular outcomes.

The judge went on to conclude that the essential services legislation was not justified as a reasonable and demonstrable limit on public employees’ rights under s. 2(d).  Even though the judge admitted that the legislation had been passed in the wake of two crippling strikes in which public sector workers had clearly withheld essential services, he found that the legislation was not a minimal impairment of the employees’ rights.  On this point, the judge noted that other provinces had devised other methods of determining when employees’ services could be deemed “essential” which he viewed as more appropriate (particularly, an independent means of making the determination, when the employer and the union could not agree among themselves).

This case will certainly be appealed to the Saskatchewan Court of Appeal, and likely beyond to the Supreme Court.  While it will likely take a number of years before a final decision is issued on whether s. 2(d) of the Charter guarantees a right to strike, Workplace Wire will keep you up to date on developments as they occur.

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