Michael Lynk's Expert Affidavit on the ILO's Law on the Right to Strike

Our friend Professor Michael Lynk of Western Law filed an expert affidavit in the recent Saskatchewan Charter case, which I summarized the other day.  Recall that the Saskatchewan Queens Bench ruled there that “freedom of association” in Section 2(d) of the Charter protects a right to strike.  In reaching this decision, Justice Ball relied heavily on ILO law, including the ILO’s expert bodies’ interpretation of Convention 87, which Canada has ratified.

Here is Michael’s Affidavit (with only Michael’s qualifications deleted.  We know Michael’s credentials are golden).

The New Relevance of ILO Interpretations of Freedom of Association in Canada
The fact that Canada has ratified Convention 87 is crucial because in B.C. Health Services, the Supreme Court of Canada said this when it ruled that Section 2(d) protects a right to collective bargaining:

79. In summary, international conventions to which Canada is a party recognize the right of the members of unions to engage in collective bargaining, as part of the protection for freedom of association. It is reasonable to infer that s. 2(d) of the Charter should be interpreted as recognizing at least the same level of protection.

This pronouncement is correct from an international law perspective, yet Canadian labour law still falls far short of the ILO’s other core right:   the right to strike.   The Supreme Court of Canada ruled back in 1987 that Section 2(d) doesn’t protect a right to strike, but the Court is in a period of revisiting and modernizing Section 2(d).  The Saskatchewan ruling, if upheld on Appeal, would move the Canadian model closer to the international law model.  This would fundamentally alter how our governments deal with industrial relations.  For example, it is almost certain that if Canadian law actually did afford workers the right to strike required  under international law, recent restrictions (and threatened restrictions) on that right involving workers at Canada Post, Air Canada, the TTC, York University, and the City of Toronto (garbage collectors) would all be unconstitutional.
ILO Law Requires Canada to Protect an  Expansive Right to Strike
Convention 87 does not expressly include a “right to strike”, but as Michael Lynk’s affidavit notes, the ILO has long concluded that the right to strike is a necessary tool in order to give meaning to the core rights the ILO protects, including the right to collective bargaining:

The right of unionized employees to strike through the peaceful withdrawal of services in order to defend their economic and social interests has been widely accepted as one of the pillars of the freedom to associate, along with the right to organize and the right to collectively bargain. Although the right to strike is not explicitly stated in either Conventions Nos. 87 or 98, the caselaw developed by the Committee on Freedom of Association and the cumulative reports of the Committee of Experts on the Application of Conventions and Recommendations have read the right to strike into the meaning of the freedom of association. A leading ILO study that reviewed the jurisprudence of the two Committees has stated that: “the right to strike is a fundamental right of workers and their organizations;” “strike action is a right and not simply a social act;” and “the right to strike is essential to a democratic society.” The Committee on Freedom of Association has ruled that: the right to strike [is] one of the essential means through which workers and their organizations may promote and defend their economic and social interests.”

The Only Situations in Which a Government Can Restrict the Right to Strike
The right to strike is not absolute in international law, but the situations in which it can be restricted are very narrow, as Michael explains in his affidavit  (para. 18):

The exceptions to the right to strike would be limited to the following three indefinite situations:
(i) Public servants who work in core administrative services in the name of the state; those working in high-level or confidential positions; police officers; and members of the armed forces;
(ii) Employees working in essential services, within the strict meaning of that term [Lynk explains later that this means work without which the life, personal safety, or health of the whole or part of the population would be endangered]; and
(iii) Political strikes which are focused on purely political aims such as a change in government (as opposed to strikes on collective bargaining or on broader economic and social policy issues);
and the following four temporary situations:
(iv) Employees working in an industry where the withdrawal of services has exceeded a certain duration and what was once an inconvenience has now become a very serious risk to the life, personal safety or health of part or the whole of the community;
(v) An acute national emergency;
(vi) When a collective agreement is in force; and
(vii) When a withdrawal of labour is, or has become, violent.

What Services are “Essential”, and Which Are Not “Essential”
The ILO has found the following types of services can be essential, and therefore the right to strike limited in so far as in necessary to protect public lives and safety (para. 26):

• the hospital sector
• electricity services
• water supply services
• telephone services
• police and armed forces
• fire-fighting services
• prison services
• the provision of food to school age students and the cleaning of schools
• air traffic control

The following services are NOT essential (are not necessary to protect lives and ensure health and safety) according to international law [Para. 27].  Here’s a game. Identify those sectors on the following list in which Canadian governments have restricted the right to strike by banning it altogether, or by legislating an end to a work stoppage through back-to-work legislation:

• petroleum sector
• radio and television
• ports
• banking
• computer services for the collection of excise duties and taxes
• department stores and pleasure parks
• the metal and mining sectors
• transport generally
• airline pilots
• fuel production, transport and distribution
• railway services
• metropolitan transport
• postal services
• garbage collection services
• refrigeration enterprises
• hotel services
• construction
• automobile manufacturing
• agricultural activities and the supply and distribution of foodstuffs
• the Mint
• the government printing service and the state alcohol and tobacco monopolies
• the education sector
• mineral water bottling company

So, if the Saskatchewan decision is upheld, and the SCC actually meant what it said–Section 2(d) protects at least the level of protection afforded by Convention 87–then Canadian governments will be restricted from banning strikes or imposing back to work legislation in any of the preceding industries, unless those restrictions can be justified under Section 1 of the Charter.

Can you see now why this debate matters?

What Must the Government Substitute for the Right to Strike in the narrow Situations in Which a Strike Ban is Permitted?
Here is an important question in light of some hints dropped by our Federal Minister of Labour last fall.  The Minister suggested that the Government is considering whether the strike and lockout provisions in the Federal Code should be revised. I suggested at the time that the Feds might be considering following the Australian model, which permits the Government to restrict the right to strike when a strike might, in the view of the government, seriously harm “the economy”.   Harm to “the economy” is not a valid reason for banning the right to strike under international law.
The other tactic of the current Federal government is to try and skew the interest arbitration process (which is substituted for the right to strike and lockout) towards the employer’s economic interests.  Michael Lynk points out that, under ILO law, in the limited situations in which a government can restrict the right to strike, the arbitration mechanism that must be substituted must be “impartial“, and the persons appointed to arbitrate must be “seen as such by both the employers and the workers concerned” (para. 25).   The process that the Feds are using in back-to-work legislation these days [described here] is certainly not “impartial” and the people being appointed by the government to hear the disputes are not seen to be impartial either, as evidenced by CUPW’s recent successful challenge of the Minister’s appointment of a person with no labour relations expertise, a choice the Court described as lacking ‘common sense’!
Incorporation of the ILO rules on the right to strike would be a useful check on the disturbing trend of governments to try and interfere with the neutrality and discretion of interest arbitrators.
So there you go.  Thanks Michael for this excellent primer on international labour law, an subject that continues to grow in importance in Canada.  Sure is an interesting time to be a labour law professor and a labour law student.  Stay tuned….
Watch for Professor Roy Adams’ take on the Saskatchewan decision, which will be posted here as a Guest Blog once Roy has finished it.