April 2, 2015
In a historic decision, a 5-2 majority of the Supreme Court of Canada has given "constitutional benediction"to the right to strike, holding that it is an "indispensable component" of the right to meaningful collective bargaining under the guarantee of freedom of association in s.2(d) of the Canadian Charter of Rights and Freedoms.
As a result, the majority of the Court found that Saskatchewan's Public Service Essential Services Act – which denies public sector employees providing essential services the right to participate in any strike action while providing no meaningful alternative mechanism for resolving bargaining impasses – violated section 2(d) of the Charter. The Supreme Court further found that the infringement was not justified as a reasonable limit under section 1 of the Charter.
On the other hand, the Court upheld the lower courts' determination that the Saskatchewan Trade Union Amendment Act, 2008, which introduced changes to the process of certification and decertification, as well as to the rules governing employer communications to employees, was constitutionally valid.
In May 2008, the conservative Saskatchewan Party government, which swept the NDP from power in 2007, passed the Public Service Essential Services Act (Essential Services Act) and the Trade Union Amendment Act (TUA Act). The Essential Services Act introduced broad definitions of "public employer" and "essential services", removed the right of public sector employees to participate in any work stoppages and established an essential services designation process that, unions alleged, was heavily slanted in favour of employers. Thus, if no agreement was reached, employers could unilaterally designate which services and employees were essential. While unions could appeal the number of employees designated as essential, they could not challenge the services or classifications so designated. The TUA Act changed the rules relating tocertification, decertification and employer communications. Notably, the Act increased the support required for certification, decreased it for decertification, substituted a secret ballot vote for card-based certification, and allowed employers to communicate their opinions to employees on matters such as unionization and labour-management negotiations.
The Majority Decision:
In a momentous 5-2 split ruling, the Supreme Court allowed the unions' appeal from the Saskatchewan Court of Appeal, restored the trial judge's decision, and held that the right to strike was an "indispensable component" of the right to meaningful collective bargaining, "supported by history, by jurisprudence, and by Canada's international obligations." Justice Rosalie Abella, speaking for the majority, declared that it was time for the Court "to give this conclusion constitutional benediction."
Justice Abella characterized the right to strike as "vital to protecting the meaningful process of collective bargaining," without which, to quote the trial judge, "a constitutional right to bargain collectively is meaningless." Abella added that, "[w]here 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. Where essential services legislation provides such an alternative mechanism, it would more likely be justified [as a reasonable limit] under s.1 of the Charter. In my view, the failure of any such mechanism in the [Essential Services Act] is what ultimately renders its limitations constitutionally impermissible."
Rationale for the Right to Strike
While noting that history has shown the importance of strike action for the proper functioning of labour relations, Justice Abella held that "[p]rotection under s.2(d), however, does not depend solely or primarily on the historical/legal pedigree of the right to strike. Rather, the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining."
Justice Abella emphasized the Court's shift from a restrictive interpretation of s.2(d) of the Charter (in theLabour Trilogy of cases in 1987) to a generous, purposive approach (in B.C. Health Services in 2007), according to which the Charter "seeks to preserve 'employee autonomy against the superior power of management' in order to allow for a meaningful process of collective bargaining."
Noting that, as an Ontario judge found in 1983, "the removal of the freedom to strike renders the freedom toorganize a hollow thing," Abella invoked the Charter values of "dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy" as supportive of protecting the right to "a meaningful process of collective bargaining" that "functions to protect individuals against more powerful entities." She stated:
The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives…. The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.
Citing Chief Justice Dickson's famous dissent in the Alberta Reference case, which was part of the 1987Labour Trilogy1, Abella pointed out that "[s]triking — the 'powerhouse' of collective bargaining — also promotes equality in the bargaining process." She observed: "This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context."
In this regard, Justice Abella relied on numerous academic articles, emphasizing that it is "the possibility of the strike which enables workers to negotiate with their employers on terms of approximate equality"; that without it, "bargaining risks being inconsequential — a dead letter"; and that "[t]he ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is therefore, and has historically been, the 'irreducible minimum' of the freedom to associate in Canadian labour relations."
Describing Chief Justice Dickson's statement in the Labour Trilogy regarding Canada's commitments under international law as a "magnetic guide," Justice Abella noted that, according to previous Supreme Court jurisprudence, "the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified." Given this presumption, Abella held, "Canada's international obligations clearly argue for the recognition of a right to strike within s.2(d)." These obligations are reflected in the UN's International Covenant on Economic, Social and Cultural Rights, the Charter of the Organization of American States, ILO Convention No. 87, and the U.N.'s International Covenant on Civil and Political Rights.
With respect to ILO Convention No. 87, Abella commented: "Though not strictly binding, the decisions of the Committee on Freedom of Association have considerable persuasive weight and have been favourably cited and widely adopted by courts, tribunals and other adjudicative boards around the world, including our Court." She added: "Additionally, there is an emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to strike. The European Court of Human Rights now shares this view."
Moreover, Abella noted, the right to strike is entrenched in a number of national constitutions, or recognized by national courts, including those of Germany, Israel, France, Italy, Portugal, Spain and South Africa. She concluded: "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."
Essential Services Act substantially interferes with s.2(d), and is not justified under s.1
Emphasizing that the test is "whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining," Abella concluded that "[t]he [Essential Services Act] demonstrably meets this threshold because it prevents designated employees from engaging in any work stoppage as part of the bargaining process." She also ruled that the Act is not justified by s.1 of the Charter which permits reasonable limits demonstrably justified in a free and democratic society. In this respect, while accepting that, in accordance with the requirements of s.1 of the Charter, "[t]he maintenance of essential public services is self-evidently a pressing and substantial objective," and "that the government's objective – ensuring the continued delivery of essential services – is rationally connected to the 'basic structure of the legislation, including the sanctions imposed on employees and their unions to ensure compliance with its provisions'," she nonetheless concluded that the measures adopted under the Essential Services Act were not "minimally impairing."
Abella held that the legislation failed the "minimal impairment" test because (1) it gave unilateral authority topublic employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism and no "meaningful alternative mechanism for resolving bargaining impasses, such as arbitration"; (2) there was no evidence to support Saskatchewan's position that the objective of ensuring the continued delivery of essential services required unilateral rather than collaborative decision-making authority; and (3) it did not provide for an "impartial and effective dispute resolution process to challenge public employer [essential services] designations …, a particular concern in light of the significant definitional latitude given to public employers."
Noting the trial judge's finding that no other essential services legislation in Canada was as devoid of accessto independent, effective dispute resolution processes as that of Saskatchewan, Abella concluded: "Given the breadth of essential services that the employer is entitled to designate unilaterally without an independent review process, and the absence of an adequate, impartial and effective alternative mechanism for resolving collective bargaining impasses, there can be little doubt that the trial judge was right toconclude that the scheme was not minimally impairing. Quite simply, it impairs the s.2(d) rights of designated employees much more widely and deeply than is necessary to achieve its objective of ensuring the continued delivery of essential services."
Abella concluded that the Essential Services Act was unconstitutional but suspended a declaration of invalidity for one year.
The TU Act
On the other hand, both the majority and the minority concluded that the amendments to the TU Act were constitutionally valid. As stated by Justice Abella on behalf of the Court:
I agree with the trial judge, whose conclusion was upheld by the Court of Appeal, that in introducing amendments to the process by which unions may obtain (or lose) the status of a bargaining representative, The Trade Union Amendment Act, 2008 does not substantially interfere with the freedom to freely create or join associations. This conclusion is reinforced by the trial judge's findings that when compared to other Canadian labour relations statutory schemes, these requirements are not an excessively difficult threshold such that the workers' right to associate is substantially interfered with.
I also agree with the trial judge that permitting an employer to communicate "facts and its opinions toits employees" does not strike an unacceptable balance so long as the communication is done in a way that does not infringe upon the ability of the employees to engage their collective bargaining rights in accordance with their freely expressed wishes.
Accordingly, Abella upheld the trial judge's conclusion that The Trade Union Amendment Act, 2008 did not violate s.2(d) of the Charter.
The Rothstein/Wagner Dissent:
In a strongly worded dissent, Justices Rothstein and Wagner criticized the majority's decision on the grounds that it (1) intruded into the policy development role of elected legislators by constitutionalizing the right tostrike, (2) departed from the Labour Trilogy, (3) created a constitutional right to a dispute resolution process where that was rejected in Fraser, and (4) injected "a one-sided view of 'workplace justice' into s.2(d) of theCharter."
In the dissenters' view, although the majority judges say that the right to strike is protected only where there is interference with the right to meaningful collective bargaining, in fact they have created "a stand-alone constitutional right to strike" by treating the right as a "necessary element" of meaningful collective bargaining, so that any limitation on the right to strike will infringe s.2(d) of the Charter. According to the minority, "[t]he majority's reasons will make all statutory limits on the right to strike presumptively unconstitutional."
Taking the view that the use of international law is an interpretive aid, and should not be a means by which courts interfere with the role of the government to accept international obligations on Canada's behalf, the minority opined that "International law is of no help to this Court in determining whether freedom of association in s.2(d) of the Charter includes a right to strike."
Having determined that s.2(d) of the Charter did not confer a right to strike, the minority also concluded that the Essential Services Act did not substantially interfere with the right to a process of meaningful collective bargaining protected by s.2(d). According to the minority, "[t]he [Essential Services Act's] 'controlled strike' regime does not render effectively impossible nor substantially interfere with the ability of associations representing affected public sector employees to submit representations to employers and to have them considered and discussed in good faith."
Finding that the Government of Saskatchewan had struck an "eminently reasonable" statutory balance, the minority added: "The narrow scope of the LRB's powers of review is justifiable in the essential services context, where public health, safety, and security are at stake."
The minority summarized as follows: "The [Essential Services Act] does not infringe on the right of essential service workers to meaningful, good faith collective bargaining. There is evidence of good faith collective bargaining under the [Essential Services Act], Health Services and Fraser confirm that s.2(d) does not entail a right to a dispute resolution mechanism, and the purpose of strikes in the public sector is to exert political pressure, not to ensure meaningful collective bargaining, as meaningful collective bargaining is already statutorily and constitutionally guaranteed. A right to strike is not required to ensure the s.2(d) guarantee of freedom of association."
Having concluded that Saskatchewan's Public Service Essential Services Act did not violate s.2(d) of theCharter, the minority regarded it as unnecessary to engage in a s.1 analysis.
The basis for the majority's decision is laid out in reasons that run to 103 paragraphs, explaining that it is the right to strike that makes the right to bargain collectively meaningful. According to the majority, the right tostrike is fundamental since without it the right to collective bargaining is "meaningless," "hollow," a "dead letter." On this view, substantial interference with the right to strike is a violation of s.2(d) unless it is justified under s.1, and is accompanied by an alternative dispute resolution mechanism. Indeed, this is the view of the ILO which, in circumstances where governments place restrictions on the right to strike in essential services, calls for "adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented." Moreover, the ILO strictly defines essential services as those needed to prevent "a clear and imminent threat to the life, personal safety or health of the whole or part of the population."
According to the majority, the right to strike levels the playing field between workers and employers, conforms with Canada's international treaty obligations, including ILO Convention No. 87, and reflects an emerging global consensus on the fundamental nature of the right to strike. As stated by Justice Abella for the Court:
The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada's international obligations. As Otto Kahn-Freund and Bob Hepple recognized:
The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter.
(Laws Against Strikes (1972), at p.8)
The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.
Indeed, there can be little doubt that this developing global consensus has strongly influenced the Canadian Supreme Court. What is more, the Canadian court's ringing endorsement of the constitutional nature of the right to strike has already reinforced that international consensus. At a tripartite meeting of the ILO in February 2015, the U.S. government, supporting the interpretation of freedom of association in Convention No.87 as including the right to strike, referenced the Canadian decision. At that meeting, workers' and employers' groups delivered a joint statement recognizing "[t]he right to take industrial action in support of their legitimate industrial interests" and recommending a package of measures to end the deadlock in the ILO's supervisory system that has been ongoing since 2012.
According to the minority, however, strike action is an economic weapon, not a means of making collective bargaining meaningful. In its view, the majority has constitutionalized what is really a statutory right, as well as a dispute resolution mechanism, and, in doing so, it has usurped the role of the legislature which needs flexibility to balance a dynamic system of labour relations. In response, the majority considers that, while there is a significant role for the legislature, a core of fundamental rights exists (the right to organize, bargain and strike), interference with which must, if it is substantial, be justified. As the Court noted in Mounted Police Association of Ontario v. Canada (Attorney General)2: "Freedom of association, like the other s.2 freedoms – freedom of expression, conscience and religion, and peaceful assembly – protects rights fundamental toCanada's liberal democratic society. Freedom of association is not derivative of these other rights. It stands as an independent right with independent content, essential to the development and maintenance of the vibrant civil society upon which our democracy rests."
In this regard, it is apparent that the majority and minority entertain different views of the relative power of workers and employers. The majority views the right to strike as essential to correcting the power imbalance between them. The minority assumes equivalence between the power of employees and employers and regards protection of the right to strike as "favour[ing] the interests of employees over those of employers and even over those of the public." To the majority, "this reasoning … turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying. It drives us inevitably to Anatole France's aphoristic fallacy: 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.'"
The implications of the decision are far-reaching, but the following issues are among those likely to arise in the near future: (1) In the North American context, which is governed by the Wagner Act model of exclusive bargaining rights exercised by the union representing the majority of employees, does the decision that theCharter does not mandate a particular labour relations regime mean that minority unions will now be entitledto recognition by the employer? (2) Do employees have a right to withdraw services where there is no incumbent union? (3) Are pre-strike and pre-lockout statutory conditions, as well as legislative prohibitions of recognition strikes, political strikes, and mid-contract strikes susceptible to Charter challenge, and if so, are they reasonable limits demonstrably justified in a free and democratic society? (4) Will ad hoc back-to-work legislation ending an otherwise lawful strike pass constitutional muster only where public services are essential in the strict sense, as understood by the ILO, in that a work stoppage would endanger life, health or safety (as distinct from economic interests), and only if an adequate alternative dispute resolution mechanism is provided? Will the curtailment of strikes be justified in the case of acute national emergencies and economic crises? (5) What degree of independence and impartiality will the Court insist on with respectto interest arbitration, insofar as the appointment of the arbitrator, arbitrability of specific issues and applicable criteria are concerned? These issues, and others, some of which have already been raised in litigation, will undoubtedly confront the Court in the years ahead.
1 Reference re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313; PSAC v. Canada,  1 S.C.R. 424; RWDSU v. Saskatchewan,  1 S.C.R. 460.
2 Mounted Police Association of Ontario, 2015 SCC 1 at paras 48-49.