A judge of the Saskatchewan Court of Queen’s Bench has ruled that the right to strike is constitutionally protected by section 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association.
Saskatchewan’s Public Service Essential Services Act (PSESA) prohibits public sector workers that perform essential services from striking. The legislation also requires that, at least 90 days before the expiry of a collective agreement, the parties must negotiate an essential services agreement that determines which services are deemed essential, and which employees must remain on the job during a strike or lockout. Where the parties cannot agree, the employer determines which employees are to be designated essential.
The PSESA allows unions to appeal to the Saskatchewan Labour Relations Board in respect of the number of employees designated by the employer as essential. However, the Board’s abilities are limited, and the Board has no authority to review the reasonableness of an employer’s designation of specific employees.
In Saskatchewan v. Saskatchewan Federal of Labour, the Union applied for a declaration that the PSESA was invalid and unconstitutional. Before the Court, the Union argued that the right to strike must be protected by section 2(d) of the Charter; otherwise, the right to bargain collectively, which was recognized by the Supreme Court of Canada in both the B.C. Health Services and Fraser decisions, would be meaningless. The Province responded by arguing that the Supreme Court has never explicitly recognized a constitutional right to strike, and that section 2(d) does not protect all aspects of activity related to collective bargaining.
The Court ultimately found that the right to strike is a constitutionally-protected freedom under section 2(d). The Court stated that the previously recognized right to collective bargaining can only operate effectively where there is a threat of economic sanction. Since the PSESA interferes with the right to engage in strike activities, it was found to be unconstitutional.
The Court explained that the PSESA’s interference with the right to strike was not justified under section 1 of the Charter, primarily because an overly restrictive approach to the “essential service” designation had been taken, and went further than was necessary in limiting the right to strike. Further, unlike other essential services legislation in Canada, the PSESA contains no dispute resolution processes.
The Court suspended the declaration of invalidity for 12 months, in order to allow the government to bring the legislation into compliance.
The Province has already filed a Notice of Appeal in this matter, requesting that the Court of Appeal overturn the decision of the Queen’s Bench. Given that the decision in this case appears to contradict the Supreme Court’s ruling in Fraser that the Charter does not protect particular models of collective bargaining, the stage has been set for an eventual pronouncement by the Supreme Court on this issue.