The right to strike is an essential part of the right to free collective bargaining

The Supreme Court of Canada has ruled that the right to strike is an essential part of a meaningful collective bargaining process and this right is now protected under the Canadian Charter of Rights and Freedoms. The case before the Supreme Court concerned Saskatchewan’s Public Service Essential Services Act (PSESA), a statute adopted in 2008 that effectively limited the ability of provincial public sector employees to strike.  Saskatchewan had refused to include in its legislation a provision allowing access to arbitration for workers affected by the statutory limitation of their right to strike.  The Supreme Court ruled that “[b]ecause Saskatchewan’s legislation abrogates the right to strike for a number of employees and provides no such alternative mechanism, it is unconstitutional.”

In the words of Justice Rosalie Abella, who wrote the majority decision, “[t]he 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.”

CAPE President Emmanuelle Tremblay believes “it is clear that there are many similarities between the Saskatchewan legislation just declared unconstitutional by the Supreme Court and the changes to the Public Service Labour Relations Act (PSLRA) brought about by the Second act to implement certain provisions of the budget of 2013.” “In both cases,” she added, “there is a statutory limitation placed on the right to strike.” The amended PSLRA stipulates that the federal government “has the exclusive right to determine whether any service, facility or activity of the Government of Canada is essential because it is or will be necessary for the safety or security of the public or a segment of the public.” Ms. Tremblay pointed out that, in CAPE’s estimation, “this provision has been invalidated by the Supreme Court ruling because it infringes on the right to strike.”

To avoid a lengthy judicial battle, Treasury Board should review the provisions of the Second act to implement certain provisions of the budget of 2013 and make the necessary changes to restore the integrity of the bargaining process in light of this Supreme Court judgement. The Public Service Alliance of Canada and the Professional Institute of the Public Service of Canada have both already filed constitutional challenges of this law, arguing that it violated employees’ right to freedom of association. CAPE is now considering joining the two other unions as an intervener.