A Constitutional Right to Strike Comes to Canada!

January 30, 2015

A famous labour law professor told me once that sometimes you write decisions or public commission reports with an eye to the future.  Sometimes you lay the ground work for future generations.  Today, the Supreme Court of Canada finally accepted that Chief Justice Brian Dickson was right back in 1987, when he argued in his famous dissent in the Alberta Reference case that “freedom of association” in Canada’s Charter must protect a right of workers to withdraw their labour in combination to pressure their employer in collective bargaining.  Today, nearly 30 years later, the Constitutional right to strike came to Canada carried on the sails of Justice Dickson’s dissent.

Here is the Court’s decision in S.F.L. v. Saskatchewan.  The case challenged draconian legislation enacted by the Saskatchewan Party that gutted collective bargaining rights of public sector workers, and permitted employers to unilaterally decide which employees would have a right to strike and which would not.  The Saskatchewan government, and governments in Ontario (see Dunmore), B.C. (see B.C. Health Services) have no one to blame for this decision but themselves.  In their haste to strip workers of the right to collective bargaining, they overreached, went far beyond what was necessary to protect the public interest, to win some small points with their political base, to show that they are ‘tough as nails against labour’, and that they could do whatever the hell the liked, because there is no constitutional protection of a right to collective bargaining or strike.

By stripping marginalized farm workers of any right to bargain, by ripping up collective agreements and prohibiting bargaining over key subjects, and by effectively removing any right of employee resistance or access to a fair and neutral system of interest arbitration, these governments demonstrated with great flair the absolute hollowness of a freedom to associate that protects neither a right to collectively bargain or strike.  In their arrogance, they gave labour the perfect test cases to ask the Court to revisit the 1987 Labour Trilogy.  Had the governments taken a more measured, fair, and respectful approach, we may not be here today.

And so we enter a new era in which governments will be expected to justify the necessity of stripping workers of the right to bargain collectively and to strike.

Today’s decision was somewhat anti-climatic, notwithstanding its obvious significance.  The Court showed its hand in last week’s MPAO v. Canada decision, which all but told us what was coming.  By adopting Chief Dickson’s dissent in the Alberta Reference as the correct approach to Section 2(d), it seemed unimaginable that that the Court would not also adopt the conclusion that followed from that approach, that Section 2(d) protects a right to strike.

As it had done in B.C. Health Services, where a right to collective bargaining was first recognized, the SCC relied on history and international law to justify the recognition of a right to strike.  The lessons to be taken from that review include the conclusion that “without a right to strike, a constitutional right to bargain collectively is meaningless.”
The right to strike is constitutionally protected “because of its crucial role in a meaningful process of collective bargaining”.  In a key passage, the SCC wrote:

Abella J.: This historical, international, and jurisprudential landscape suggests compellingly to me that s. 2 (d) has arrived at the destination sought by Dickson C.J. in the Alberta Reference, namely, the conclusion that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.  In this case, the suppression of the right to strike amounts to a substantial interference with the right to a meaningful process of collective bargaining.

The test, according to the SCC is this:

Abella J.: The test, then, is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining.  The PSESA demonstrably meets this threshold because it prevents designated employees from engaging in any work stoppage as part of the bargaining process. It must therefore be justified under s. 1  of the Charter .

It will take some time to flesh out what the case means.  It appears to mean at first glance that a complete statutory ban on the right to strike will now violate Section 2(d), and the analysis will turn to Section 1 and the question of whether the infringement is justified.  This is similar to the Court’s long-standing approach to freedom of expression in Section 2(b), where most of the heavy legal lifting takes place under Section 1.  The section 1 analysis will include an assessment of whether there is an adequate dispute resolution process, such an independent interest arbitration, when workers’ right to strike is limited. Does this have the effect of constitutionalizing a right to interest arbitration?

Abella J.:  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. 

In Saskatchewan, the SCC ruled that the legislation in question was not saved by Section 1, because it was over broad in sweeping in employees who were not essential at all, and because it offered no fair alternate dispute resolution process at all for the workers whose right to strike had been taken away.

Many questions remain.  I have to digest the decision for a while, but off the top of my head, here’s a few:

1.   What does this decision mean for the Ontario Court of Appeal ruling in Association of Justice Counsel v. Canada, which was denied leave to the SCC.  That ruling found that the constitutional obligation on the government to bargain with its employees’ association ends after a reasonable period of bargaining has occurred and an impasse is reached.  At that point, the employer/state can unilaterally impose whatever terms it likes.  That conclusion was premised on the assumption that the test for Section 2(d) is that the law makes it “effectively impossible” to engage in collective bargaining, and that there is no Constitutional right to a dispute resolution process.  The “effectively impossible” test was killed in MPAO, replaced by “substantially interferes”,  and Saskatchewan now makes clear that in fact there is a right to strike or a right to access a  meaningful dispute resolution process.  This suggests that Association of Justice Counsel would be decided differently now.  All of this could spell trouble for Alberta, which is trying to defend its controversial Public Sector Salary Restraint Act.

2.   Is the Agricultural Employees Protection Act, barely upheld in Fraser, now unconstitutional, because it does not grant any protected right to strike or access to any alternative dispute resolution process to agricultural workers?

3.  Can employee associations that function outside of the Wagner model (because they are excluded from the legislation), like the union representing Legal Aid Lawyers, now strike when their public sector employer ignores their requests to engage in bargaining?

4.   About 65% of Canadian employees and 83% of private sector employees are non-union, and have no legally protected right to strike in Canada.  That is, if nonunion workers go on strike in this country, there is no statutory protection from termination by their employer.  Only workers unionized in a majority trade union have a legally (statutorily) protected right to strike. Does this Saskatchewan decision, read with Dunmore and Fraser, which created a positive duty on governments to protect Charter rights in some cases, mean that nonunion workers (or at least some of them) must now be a afforded some form of statutory right of non-reprisal for engaging in a strike?  Do we need a law that protects nonunion Walmart workers from being fired if they strike to try and win better wages?  Or can governments still only grant the constitutional right to strike to about a 17% of private sector employees?

One thing’s for sure:  labour lawyers will have a lot more constitutional litigation on their plates in the coming years.

Lastly, I’d like to note two points about the importance of legal academics.  Firstly, over a dozen labour law scholars were cited by the Court in this case and last week’s decisions, and labour law scholars helped set the foundation for the Court’s reasoning for both the majority and dissenting decisions.  Second, the leading peer reviewed law journal on work law–the Canadian Labour & Employment Law Journal–was cited 10 times in this decision.  I play a small role on that journal as Articles Review Editor, but credit must go out to Kevin Banks (and Bernie Adell (RIP), Jeffrey Sack and his people at Lancaster House, and Queens Law students who work on the journal.
Comments as always are welcome.