The Constitutional Right to Strike

By March 25, 2015Labour Views

Labour Views March 25

Written by Gayla Thunstrom, Acting President Northern Territories Federation of Labour

On January 30, the Supreme Court of Canada ruled that the right to strike is protected by the Canadian Charter of Rights and Freedoms.

All Canadians should celebrate this courageous decision.   It recognizes the fact that there is a fundamental power imbalance in the workplace that favours employers over employees.  Confirming the right to strike confirms balance and promotes equality in the bargaining process.

The decision resulted from a challenge to a Saskatchewan government law that allowed the employer to unilaterally determine which workers can be designated as “essential”—workers not able to join in the strike . It removed all possible recourse to appeal for the workers affected.   Essential workers were named without an independent dispute-resolution process, handcuffing the Saskatchewan Labour Relations Board.

The Supreme Court judgment pointed out that “no other essential services agreement in Canada comes close to prohibiting the right to strike as broadly, and as significantly.”

The Court ruled that there was no reasonable basis for the approach to essential services. The usual process is for unions and employers to collaboratively negotiate essential service agreements.  Historically, unions have recognized that even during strikes, some services are essential to the public good.

In the Saskatchewan decision, the Court found “no evidence to support Saskatchewan’s position that the objective of ensuring the continued delivery of essential services requires unilateral rather than collaborative decision making authority.”

What the Court has recognized is that workers collective rights are human rights. As the decision says, the right to strike is essential to realizing Charter values of “human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy.”

Does this mean we’ll see more strikes? Of course not.  No union goes into bargaining looking to send their members out on strike. As the Court recognizes, “strike action has the potential to place pressure on both sides of a dispute to engage in good faith negotiations.” This benefit is enhanced by fair designation of essential services.

Strikes will always be the last resort in collective bargaining. The majority of collective agreements are settled without a work stoppage.  And this decision won’t change the labour movement’s commitment to protecting public health and safety during labour disputes.  Employers and unions will collaborate more and more negotiations will successfully conclude with fair collective agreements

We should take pride as Canadians that this brings our law in line with Canada’s international commitment to the right to strike. Canada is a party to United Nations conventions recognizing the right to strike, as well as International Labour Organization Convention no. 87 concerning freedom of association and the right to organize.

This decision follows another Supreme Court decision that recognized the right of the RCMP to choose independent associations to engage in collective bargaining. That confirmed that the right to choose an independent association to engage in collective bargaining is the essence of freedom of association.

As Justice Abella wrote in the Court’s decision, “clearly the arc bends increasingly towards workplace justice.”