In what is being hailed as a “game-changer” in Canadian labour relations, a majority of the Supreme Court of Canada held that the right to strike is constitutionally protected under the freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms. In Saskatchewan Federation of Labour v. Saskatchewan (January 30, 2015), the issue before the Supreme Court was whether Saskatchewan legislation prohibiting essential service employees from participating in strike action was constitutional. Five of the seven judges sitting held that the right to strike is an indispensible component of the right to collectively bargain, protected under s. 2(d) of the Charter. The majority found that the absolute ban on the right to strike under the impugned legislation was not minimally impairing and was therefore unconstitutional. This ground-breaking decision overturns almost three decades of jurisprudence that rejected the proposition that the right to strike was constitutionally entrenched.
The legislation at issue, entitled The Public Service Essential Services Act, prohibited public sector employees in Saskatchewan, designated as “essential service employees”, from participating in strike action. The legislation granted the employer with the ability to unilaterally designate employees as “essential” and in the event of a bargaining impasse, require such employees to continue in their employment duties in accordance with the last collective bargaining agreement. In addition, the legislation did not set out a meaningful alternative mechanism for resolving such impasses, such as arbitration.
The Saskatchewan Federation of Labour and other unions challenged the constitutionality of the legislation. At trial, the judge held that the right to strike was protected under the Charter and that the impugned legislation substantially interfered with that right. Although the trial judge acknowledged that the maintenance of essential public services was a substantial objective rationally connected to the legislation, he nevertheless found that the legislation was not minimally impairing (carefully tailored to minimize the impairment of the right). The Saskatchewan Court of Appeal however allowed Saskatchewan’s appeal and concluded that although there was an evolution in the law relating to the constitutional right of freedom of association, the law had not shifted to the point of acknowledging constitutional protection for the right to strike.
The majority for the Supreme Court disagreed. After reviewing the history of labour relations in Canada, as well as the international and domestic legal landscapes, the majority decision concluded that the suppression of the right to strike substantially interfered with the right to a meaningful process of collective bargaining. Furthermore, the impugned legislation was not “minimally impairing” and went beyond what would be considered necessary to ensure the continued delivery of essential services. The majority agreed with the trial judge’s observation that in Canada, “no strike” legislation almost always provides for access to independent dispute resolution processes. Saskatchewan’s legislation did not. Similarly, the legislation did not provide a process for resolving disputes relating to the employer’s ability to designate “essential” service employees. The fact that that the legislation required designated employees to perform their duties in accordance with the last collective bargaining agreement, and not just the duties that were essential, was also seen to be disproportionate and unnecessary for the achievement of the government`s objective. The majority allowed the appeal and held that the legislation violated the Charter.
The dissenting judges disagreed with the majority that the right to strike was a necessary component of the right to bargain collectively under the freedom of association. Instead, the statutory and constitutional duty on the employer to bargain in good faith would serve to ensure a meaningful collective bargaining process. By constitutionalizing the right to strike, it was the minority’s view that the Court was intruding into the realm of policy which naturally belonged to elected legislators. It was the role of such legislators, and not the Court, to determine the appropriate balance between competing economic and social interests in the area of labour relations. In their view, the majority’s decision improperly and unfairly disturbed that balance by providing constitutional rights on employees, while burdening employers with constitutional obligations. The minority also noted that the legislation’s lack of a dispute resolution process was in fact reasonable, since the Government of Saskatchewan could not subject itself to arbitral awards that would make it unaffordable to deliver necessary services.
The result in Saskatchewan Federation of Labour v. Saskatchewan demonstrates the significant shift in the law as it applies to the constitutional right of freedom of association. This evolution is also demonstrated in the recent Supreme Court decision in Mounted Police Association of Ontario v. Canada (“MPAO”) (January 16, 2015). MPAO involved a constitutional challenge to the labour relations scheme imposed upon employees of the RCMP. Such employees were excluded from the labour regime governing the federal public service under the Public Service Labour Relations Act, and instead a non-unionized labour relations regime was imposed upon them by the Royal Canadian Mounted Police Regulations.
The main component of this regime was the Staff Relations Representative Program (SRRP). The SRRP was composed of members of the RCMP with a mandate to consult with the RCMP on human resource initiatives and policies, with the understanding that management had the final word. The constitutional challenge arose when two private associations of RCMP members, whose goal was to represent RCMP employees on work-related issues, were not recognized by the RCMP management.
The Supreme Court of Canada held that both the exclusion of RCMP members from the Public Service Labour Relations Act, and the imposition of the non-unionized labour relations regime under the Royal Canadian Mounted Police Regulations, infringed section 2(d) of the Charter, and could not be justified under section 1. The majority for the Court noted that the section 2(d) guarantee of the freedom of association protects a meaningful process of collective bargaining. This includes a degree of choice and independence sufficient to pursue collective goals. The regime imposed on the RCMP employees was seen to deny the members the independence necessary for a meaningful collective bargaining process.
Although the Supreme Court in MPAO once again demonstrated the expanded constitutional protection afforded to collective bargaining, it was careful to note that the right to collective bargaining is a guarantee of a process and not a guarantee of an outcome, or even a particular model of labour relations. This point was highlighted in a companion case to MPAO entitled Meredith v. Canada (Attorney General) (January 16, 2015). Meredith involved a constitutional challenge to the wage restraint measures imposed upon employees of the RCMP by the Expenditure Restraint Act (“ERA”). The ERA limited all federal public sector employees to a 1.5% increase for 2008-2010. The Supreme Court held that the wage restraint measures in the ERA did not infringe the members’ freedom of association because the limits imposed by the ERA did not preclude consultation on other compensation-related issues and did not impair the collective pursuit of workplace goals of the RCMP members.
In light of the shift in the law as demonstrated in the Saskatchewan Federation of Labour v. Saskatchewan and MPAO, the decision in Meredith is very positive for employers and makes it clear that the constitutional protection is limited to guaranteeing a meaningful process, but not a particular outcome.