The Politics of the Constitutional Right to Strike

Saskatchewan Federation of Labour v. Saskatchewan

By Charles Smith

On January 30, 2015 the Supreme Court of Canada (SCC) made its long anticipated ruling in Saskatchewan Federation of Labour (SFL) v. Saskatchewan.[1] In its decision, the SCC overturned its 1987 decision in Reference Re Public Service Employee Relations Act (Alta) (Alberta Reference). In the Alberta Reference (and two others dubbed the “labour trilogy”) the SCC ruled that freedom of association is an individual right that did not protect the activities or actions of collective organizations. In SFL v. Saskatchewan, the SCC turned that judicial philosophy on its head and ruled that workers do have collective rights that cannot be easily overturned by government. This represented a historical reversal and expanded the collective provisions of freedom of association in the Charter.

“In SFL v. Saskatchewan, the SCC turned that judicial philosophy on its head and ruled that workers do have collective rights that cannot be easily overturned by government. This represented a historical reversal and expanded the collective provisions of freedom of association in the Charter.”

SFL v. Saskatchewan arose out of the labour law changes implemented by the Saskatchewan Party (SP) in 2007. The SP’s labour law changes consisted of Bill 5 (the Public Service Essential Services Act, or PSESA) and Bill 6, the Trade Union Amendment Act. As I have discussed elsewhere, Bill 5 and 6 represent a neoliberal restructuring of the province’s labour’s laws because they shift more power to individual employers at the expense of workers and their unions.[2] Bill 5 unilaterally withdrew the right to strike for thousands of public sector workers. The legislation defined essential services as any work whose absence might create a “danger to life, health or safety; the destruction or serious deterioration of machinery, equipment or premises, serious environmental damage, or disruption of the courts.” The legislation declared essential all workers in public service, Crown Corporations, Regional Health Authorities (including hospitals), Municipalities, University of Saskatchewan and Regina, Saskatchewan Institute of Applied Science and Technology, Police and “any other person, agency or body, or class of persons, that provides an essential service to the public.” In essence, the legislative changes in Bill 5 allowed government employers to unilaterally dictate which employees are essential for collective bargaining purposes and removed the ability of public sector unions to appeal essential service classifications. As a result of Bill 5, Saskatchewan had the most restrictive essential services provisions in the country.[3] Bill 6, meanwhile, rewrote certain provisions of the Trade Union Act, expanding management’s right to communicate fact and opinion to employees during certification drives and raised the threshold for workers to successfully certify. Bill 6 also eliminated automatic certification provisions where more than 50 percent of workers successfully signed union cards, replacing that process with a secret ballot provision.

In previous periods, anti-labour legislation such as Bill 5 and 6 would have generally resulted in labour unrest, political instability or mass protest. While the province’s unions did mount some political resistance in early 2008, the principle tactic was a court challenge testing the constitutionality of these Bills under the Charter of Rights and Freedoms. This tactic was controversial for several reasons. First, as numerous labour scholars have demonstrated, the courts have long been antagonistic towards workers’ collective action.[4] More often than not, courts and judges in Canada have sought to limit and constrain workers collective freedoms at the expense of individual property owners. Second, the tactic necessarily takes resources from political and economic mobilizing and transfers them to lawyer and court fees (which is no small cost). This trend has the repercussion of weakening political resistance and leads to what Michael Mandel once called “the legalization of politics.”[5] Historically, working people have made political and economic gains through strike actions, mass protest, organizing in workplaces and in union halls where workers are empowered collectively to challenge employers and governments. Those struggles are built on the principles of solidarity, fairness, and justice. Court challenges, however, distance everyday working people from fight-back strategies.

“Historically, working people have made political and economic gains through strike actions, mass protest, organizing in workplaces and in union halls where workers are empowered collectively to challenge employers and governments. Those struggles are built on the principles of solidarity, fairness, and justice. Court challenges, however, distance everyday working people from fight-back strategies.”

Nevertheless, in 2015 unions bypassed these traditional strategies and opted for a constitutional challenge to both Bill 5 and 6. This decision, while complex, likely occurred for two reasons. One, it was not a challenge that arose from a specific workplace dispute (such as a strike) but rather directed at government as a whole. Such a broad political challenge likely made channelling resources to a court challenge more acceptable. Perhaps the most important reason, however, was simply timing. The SP had the poor political judgement of passing their draconian legislation almost immediately after the SCC had ruled that the Charter protected a procedural process to collective bargaining in BC Health Services 2007. These confluences of events proved too tempting for unions to ignore and a court challenge was launched in 2011. 

The PSES hits a wall: The Court of Queen’s Bench decision

The Charter challenge launched by the SFL, the Saskatchewan Union of Nurses, the Canadian Union of Public Employees, Service Employees International (West), and the Saskatchewan Government and General Employees’ Union asked the court to re-examine the 1987 “labour trilogy.”[6] Amongst the many questions before the Court of Queen’s Bench was to what extent the Charter’s protection of freedom of association (2(d)) “protects a right to strike, as an essential element of collective bargaining, and to what extent that right can be limited by s. 1 of the Charter to ensure the essential delivery of essential services to the community.”[7] Justice Dennis Ball[8] concluded that strikes are a fundamental component of the existing collective bargaining process and are therefore deserving of constitutional protection. Quite simply, Ball observed that the essential services bill created “substantial interference” for the union to collectively withdraw one’s labour.[9] While Ball conceded that it might be important for a government to have “some” form of essential services protection (a point not conceded by the unions) he argued that the existing Bill was too broad in scope and therefore could not pass the Charter’s reasonable limits clause in section 1. In his words:

…no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly, as PSESA Act. No other essential services legislation is as devoid of access to independent, effective dispute resolution processes to address employer designations of essential services workers and, where those designations have the effect of prohibiting meaningful strike action, an independent, efficient, overall dispute mechanism.[10]

In making this final observation, Ball concluded that the PSESA transfers all the power of designation to the employer and that decision cannot sustain constitutional scrutiny. On the question of Bill 6, Ball refused to argue that the changes to the Trade Union Act violated the Charter.

Momentum stalled: Saskatchewan’s Court of Appeal

The Court of Appeal’s response to Ball’s decision was that the SCC had not overturned the 1987 “labour trilogy” and therefore there continued to be no Charter right to strike. [11] In arriving at this conclusion, the court built on the SCC’s reasoning in BC Health Services 2007 and the decision in Ontario (AG) v. Fraser (2011) that refused to constitutionalize Canada’s specific form of labour relations model. The court also concluded that the unions were asking for constitutional protection for the “modern right to strike” rather than a historical right where there was little legal regulation or restrictions on the ability of workers to strike. To constitutionalize a freestanding right to strike, the court reasoned, raises dangerous issues for the unions. For instance,

…[the] SFL and the unions do not wish to return to a world where employees can withdraw their labour in concert, but where employers are not obliged to recognize unions, where union representation is based on something other than exclusive majoritarianism, where employers are not required to bargain, or to bargain in good faith, where employees who participate in strikes can be dismissed for breach of their employment contracts and so forth. The reality is that, in the year 2013, the “right to strike” which the SFL and the unions seek to protect is deeply integrated into, and in many ways can be seen as a function of, a specific statutory system.[12]

The problem for the appellate court was that the SCC also recognized in BC Health Services that the right to collective bargaining predates Canada’s acceptance of the Wagner style of collective bargaining.[13] There was thus a great deal of ambiguity on the question of constitutional labour rights and the right to strike: were unions asking for an unfettered right to strike free from statutory limitations? Or, were the unions willing to accept existing limitations on the right (i.e. legal bans on midterm strikes) but not additional ones? As there was no clear answer to these questions, the Court of Appeal ruled in favour of the government and struck down Ball’s decision. The issue was then appealed to the SCC.

A new judicial life line? The Supreme Court of Canada and the right to strike

SFL v. Saskatchewan was decided only a week after another prominent freedom of association case entitled Mounted Police Association of Ontario v. Canada.[14] According to the court, its decision in Mounted Police that freedom of association protects a meaningful process of collective bargaining (para 5) reinforced the notion that the “judicial arc” with regards to workers’ rights was bending “increasingly towards workplace justice” (SFL v. Sask, para 1).

Having given voice to a new judicial philosophy on workers’ collective rights, it was not entirely surprising that in a 5-2 decision, the SCC concluded that the Charter included a stand-alone right to strike. Writing for the majority, Justice Rosalie Abella[15] determined that the PSESA’s unilateral withdrawal of the right to strike “amounts to a substantial interference with their right to a meaningful process of collective bargaining” and was therefore unconstitutional (para 2). As meaningful collective bargaining could only occur if there was a legitimate threat of workers withdrawing their labour, the majority argued that the strike now deserved “constitutional benediction.”

As has become common in the more recent freedom of association cases, the majority arrived at these lofty conclusions by relying on former Chief Justice Brian Dickson’s dissent in the Alberta Reference. Dickson’s dissent had argued for a more generous and proactive interpretation of freedom of association because of the importance of collective action for workers to challenge the authority of their employers. The only way workers had ever effectively countered the power imbalance between themselves and employers, Dickson argued, was through collective bargaining and the collective withdrawal of labour. Twenty-eight years later, the majority of the SCC now agreed with those conclusions.

“The only way workers had ever effectively countered the power imbalance between themselves and employers, Dickson argued, was through collective bargaining and the collective withdrawal of labour. Twenty-eight years later, the majority of the SCC now agreed with those conclusions.”

By elevating Dickson’s dissent, the majority recognized that since BC Health, the court has determined that “the Charter values of human dignity, equality, liberty, respect for the autonomy of the person and enhancement of democracy” are enhanced through constitutional protection of bargaining and the right strike (para 53-54). In a more lengthy discussion, the SCC concluded that these principles were also endorsed by Canada’s international human rights obligations (para 62-75). Wrapped within this discussion is the belief that the collective decision to strike is a strong “affirmation of the dignity and autonomy of employees in their working lives” (para 54).   The power of those words coming from a Supreme Court Justice (let alone from the majority of judges) should not be underestimated. To my knowledge, never in its history has the SCC shown such sympathy for the collective actions of workers to further workplace democracy.

While the majority recognized that the ability to strike does not guarantee a specific outcome, they were nevertheless clear that governments could not dismiss the ability of workers to strike. In other words, government could not fix the rules of the labour relations game to the detriment of workers’ rights.  In their words:

The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve the bargaining impasses, justify the trial judge’s conclusion that the PSESA impairs the s. 2 (d) rights more than necessary (my emphasis, para 81).

Coming to this conclusion, the court stated, does not suggest that government cannot create or enforce essential service legislation. To the contrary, the SCC was clear that the designations of essential services are “fundamental questions” (para 92) that certainly can be addressed by government. The problem with the SP’s legislation was that it unilaterally withdrew workers’ right to strike without designating some sort of independent review process for resolving disputes (para 96). Coming to that conclusion, the SCC struck down the PSESA, giving the government a year to revise the Bill. On the constitutional questions surrounding the TUA, the SCC simply stated it did not interfere with the ability of workers to form associations, a clear loss for the SFL’s argument surrounding the transfer of power to employers during the certification process. Nevertheless, the elevation of the right to strike to constitutional status was more than enough for labour leaders to declare victory.

While the majority decision was a strongly worded endorsement of the right to strike, it also came with a strong dissent from Justice Rothstein and Justice Wagner. For those following closely, this will come as little surprise. Appointed to the SCC by Stephen Harper in 2006, Rothstein has opposed every SCC decision extending workers’ rights. His first case dealing with workers’ constitutional rights was in the 2011 Fraser case (he did not participate in BC Health) where he argued forcefully for a reversal of BC Health after four short years. Then in the Mounties case Rothstein lamented the fact that his colleagues were too cavalier with overturning precedent from the 1980s and argued for a more restrictive interpretation of workers’ collective freedoms. In the SFL case, he took a similar approach borrowing the language and intent of the majority from the Alberta Reference stating that the right to strike was a modern right (para 110-113) and that labour relations should be left to the legislature (para 114-124).

At the root of Rothstein’s dissent, was his concern with the rights of employers. He criticized the majority for “relying on a 19^th century conception” of the workplace which presumably implied an image of downtrodden workers and overly greedy industrial bosses. This vision was out of step, he maintained, with modern employment relations (although he offers no concrete evidence to support this claim). By constitutionalizing a right to strike, Rothstein believed that the majority were really imposing a political rather than legal view,

…that favours the interests of employees over those of employers and even over those of the public. While employees are granted constitutional rights, constitutional obligations are imposed on employers. Employers and the public are equally as entitled to justice as employees—true workplace justice looks at the interests of all implicated parties (para 125).

While such a worldview grossly ignores the power imbalance of modern workplace relations (something the majority was critical of) it is consistent with traditional judicial philosophy with regards to workers’ collective actions. That the majority rejected such a view is what makes this case unique.

What was gained?

It is worth considering some of the broad implications of the Supreme Court’s recent decision. For the unions associated with the Canadian Foundation for Labour Rights SFL v. Saskatchewan represents an essential component in their argument that “labour rights are human rights.” This was certainly the opinion of Canadian Labour Congress (CLC) president Hassan Yussuff, who congratulated the SCC for its “courageous decision” recognizing labour rights under the Charter.[16] The substance of these arguments is that constitutional rights act as a buffer to protect unions from further attacks by neoliberal governments. In essence, constitutional protection will act as a legal shield to protect labour’s existing rights and lay the foundation to grow and expand the labour movement in new ways. Such a view necessarily sees the courts as allies of working people because, as Joel Bakan stated, “the judiciary [are] essential for protecting this fundamental right. It’s a classic case – like segregation in the U.S. South, or abortion or sexual orientation equality in Canada – where governments cannot be relied upon to respect constitutional rights and freedoms, so the courts step in.”[17] Given the language adopted by the majority, this argument will certainly carry a great deal of weight. After SFL v. Saskatchewan, for instance, it will be much more difficult for governments to unilaterally withdraw the right of workers to strike through legislative decree.

“Given the language adopted by the majority, this argument will certainly carry a great deal of weight. After SFL v. Saskatchewan, for instance, it will be much more difficult for governments to unilaterally withdraw the right of workers to strike through legislative decree.”

As has been articulated by Fay Faraday and Eric Tucker, successful court challenges such as SFL v. Saskatchewan have the potential to act as a tool of legitimation that can reinforce the status and role of unions in Canada.[18] Judy Fudge has made a similar argument, stating that a constitutionally recognized right to strike has the potential to assist in “re-establish[ing] a balance between and among civil society organizations and the state by providing constitutional protections to ensure that unions and workers’ organizations remain vibrant civil society actors.”[19]

The SCC’s affirmation of a constitutional right to strike also makes it difficult for any government to severely restrain a public sector union from striking without providing some legislative quid pro quo. Unions (especially in the public sector) will now be able to legitimize their strikes as protecting “Charter values” such as democracy, equality and liberty. By equating strikes with Charter values, the labour movement has certainly gained a powerful political, legal and social tool.

Finally, it is important to remember that the SCC’s decision is an important legal and political victory for workers in Saskatchewan, who have not been treated well by the SP government. In this sense, the SFL and the public sector unions have derailed (at least some) of the SP’s labour agenda. The Saskatchewan government will now have to withdraw or substantially revise its essential service legislation, likely in negotiation with the unions.[20]

What might be lost?

Notwithstanding these important gains, labour’s constitutional victory also comes with several drawbacks. As identified by the SCC and the Saskatchewan Court of Appeal, labour has always had a historical right to strike. In fact, it was the postwar model of industrial relations (the so-called Wagner model) that placed restrictions on the ability of workers to strike. In pointing to those limitations, the SCC championed the notion that a legalized, institutionalized collective bargaining process that includes the right to strike actually leads to labour peace (SFL v. Sask, para 42-43). Therein, of course, lays the contradiction: by tying a constitutional right strike to a meaningful (legalized) collective bargaining process the court is reinforcing the notion that strikes will be infrequent, apolitical and isolated to narrow economic interests. That is something that even Hassan Yussuff also endorsed and championed after the SFL decision. As Larry Savage and I argue in our forthcoming book on the topic, however, the right to strike in the modern context already comes with severe restrictions. After the Second World War, for instance, workers were forbidden from striking during the life of a collective agreement, for political purposes or for recognition by employers or governments. In other words, labour’s legal strategy does not seek to constitutionalize an unfettered right to strike, but rather strikes that occur after the break down of collective bargaining. That process is now elevated to constitutional status.

“Historically, it is difficult to find evidence where the rights of working people have been substantially advanced by courts or judges. In fact, judges are generally more comfortable as members of the ruling classes within the state and thus present obstacles to furthering the rights of workers.”

This criticism actually leads to a further problem. As I have argued elsewhere, it is difficult to contemplate how judicial decisions alone can fundamentally transform society.[21] Recognizing a constitutional right to strike will not lay the foundation for further changes in government or lead to a more democratic economy. Historically, it is difficult to find evidence where the rights of working people have been substantially advanced by courts or judges. In fact, judges are generally more comfortable as members of the ruling classes within the state and thus present obstacles to furthering the rights of workers.

Legal challenges are also apolitical as they separate the question of “rights” from political and economic struggle. It is also difficult to contemplate how “rights” can be used to significantly restrain the power that employers or government maintain within capitalist societies. Quite simply, under a “labour rights” formula, victories are reduced to legalistic, judicial made law that bears little resemblance to workers’ everyday struggles against the forces of neoliberalism or globalization.

Final thoughts

Given the SCC’s reasoning in SFL v. Saskatchewan, workers and union leaders across the country should feel emboldened in their struggles. On this front, the SFL and other participating unions deserve credit for this historic legal victory. Indeed, the elevation of a constitutional right to strike suggests that the labour movement now has a significant legal tool at their disposal.   The challenge now is how workers and their unions can transform their legal victory into a political one. If that does not occur, questions of “labour rights” will simply become narrow legal tools that benefit labour lawyers more than workers themselves. If the labour movement is willing to use the right to strike for more activist fight-back strategies that seek to challenge the power of government and employers in the current era, then it really does have the potential to spark broader questions about societal transformation based on workplace justice.

Author Bio

Charles Smith (Ph.D York) is an Assistant Professor in the Department of Political Science at St. Thomas More College, University of Saskatchewan.  His research interests include Canadian and International political economy, public law and federal and provincial public policy. With Larry Savage (Director, Brock University Centre for Labour Studies) Charles is writing a book tentatively titled, Labour and the Charter of Rights and Freedoms (UBC Press).

References

[1]Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4.

[2] Charles Smith, “The “New Normal” in Saskatchewan: Neoliberalism and the Challenge to Workers’ Rights,” in David McGrane, ed., New Directions in Saskatchewan Public Policy (Regina: University of Regina Press, 2011).

[3] Since 2007, however, both Nova Scotia and British Columbia have introduced sweeping Essential Service Bills that also unilaterally withdraw the collective right of workers to strike.

[4] Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948 (Toronto: University of Toronto Press, 2001).

[5] Michael Mandel, The Charter of Rights and the Legalization of Politics (Toronto: Thompson, 1993).

[6]Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.

[7]SFL v. Saskatchewan, 2012 SKQB 662, paragraph 55.

[8] It is somewhat ironic that prior to his appointment to the Court of Queen’s Bench, Dennis Ball was chair of the Saskatchewan Labour Relations Board. Ball was appointed chair by Conservative Premier Grant Devine.

[9]SFL v. Saskatchewan, 2012 SKQB 662, paragraph 121-122.

[10] Ibid., 205.

[11]SFL v. Saskatchewan, 2013 SKCA 43.

[12] Ibid., paragraph 63.

[13] Ibid., paragraph 64-68.

[14]Mounted Police Association of Ontario v. Canada, 2015 SCC 1.

[15] Like Justice Ball, Abella was also chair of a labour relations board (Ontario) and thus an expert in labour law.

[16] Hassan Yussuff, “With right to strike, the Supreme Court returns balance to the workplace,” Globe and Mail, 31 January 2015.

[17] Joel Bakan quoted in Sean Fine, “Canadian workers have fundamental right to strike, top court rules,” Globe and Mail, 30 January 2015.

[18] Fay Faraday and Eric Tucker, “Who Owns Charter Values? A Mobilization Strategy for the Labour Movement,” in Matthew Behrens ed., Unions Matter: Advancing Democracy, Economic Equality, and Social Justice (Toronto: Between the Lines, 2014), 125-138.

[19] Judy Fudge, Introduction: Farm Workers, Collective Bargaining Rights, and the Meaning of Constitutional Protection,” in Fay Faraday, Judy Fudge, and Eric Tucker eds., Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (Toronto: Irwin, 2012), 16.

[20] In 2013, the SP introduced new amendments to the province’s labour laws (Bill 85, The Saskatchewan Employment Act), which amalgamated several pieces of employment legislation (including the Trade Union Act) and later introduced Bill 128, The Saskatchewan Employment Amendment Act PSESA which tweaked some of the provisions in the Essential Services Act. The one concession that Bill 128 gave to public sector unions was the ability to appeal an essential service designation after bargaining broke down.

[21] Charles Smith, “Labour, Courts and the Erosion of Workers’ Rights in Canada,” in Stephanie Ross and Larry Savage eds., Rethinking the Politics of Labour in Canada (Halifax: Fernwood, 2012), 184-197.