Canada’s Supreme Court Just Enshrined Public Sector Workers’ Right to Strike

Gerard Di Trolio

So many things seem to be so much better in Canada—even labor law.

In a ruling on January 30, the Supreme Court of Canada recognized the right to strike as a legitimate part of the collective bargaining process for Canadian workers. The case is a major victory for Canada’s labor movement, which has been battered by anti-union legislation from conservative governments at the provincial and federal level in the last few years.

In a 5-2 decision, the court struck down Saskatchewan’s Public Service Essential Services Act (PSESA) which was passed in 2008 by the province’s right-wing government of Premier Brad Wall. (Premiers are the heads of provincial governments in parliamentary systems.) The legal challenge was brought forward by the Saskatchewan Federation of Labour (SFL). Saskatchewan’s Court of Queen’s Bench ruled against the law in 2012; the province appealed to the Saskatchewan Court of Appeal, which upheld the law. The SFL then appealed to the Supreme Court. The Court has given the province one year to draft new legislation that recognizes workers’ rights to strike.

PSESA curtailed the ability of public sector workers in Saskatchewan to strike. It gave public employers in Saskatchewan the ability to designate their area of the public sector as essential services,” thus removing workers’ right to strike.

We saw the legislation back in December 2007, and we knew it was trouble then,” says Tom Graham, President of the Canadian Union of Public Employees (CUPE) Saskatchewan, one of the province’s largest unions. We were promised consultation when in fact we were given forty-five minutes to present a brief to the Minister of Labour at the time.”

Public employees in Saskatchewan quickly felt the effects of PSESA once it was passed. The public employers were taking full advantage of it. They were demanding concessions on things, in my view, that didn’t matter very much, and offering very small wage increases below the cost of living,” says Graham.

Saskatchewan has seen an assault on trade union rights since the Saskatchewan Party of Premier Brad Wall came to power in 2007. The Wall government has passed several anti-union bills including removing card check certification in what was once Canada’s most progressive province on labor rights. With the end of card check certification in Saskatchewan and recently at the federal level, only five provinces and three territories use this certification method. Prior to 1977, every province had card check certification.

Like much of Western Canada, Saskatchewan has experienced a resource-fuelled economic boom in the past decade. Saskatchewan is the world’s largest exporter of potash, the second largest exporter of uranium, and has deposits of oil, gas, gold, copper and zinc. These anti-union laws are a result of the government’s right wing ideology. While the government frames these measures as necessary reforms to promote economic growth and competitiveness, they are clearly part of an attempt to squeeze workers despite a strong economy.

Not just this legislation, but in the process of reforming all labor legislation, people found out the day of that consultations were coming, that the legislation was drafted. There was no interest to consult [with unions],” says Andrew Stevens, an Assistant Professor at the University of Regina’s Faculty of Business Administration. They [the Saskatchewan Party government] believed they had a sweeping mandate and could ignore tripartitism. And I think they shot themselves in the foot. Had they consulted, they could have had an essential service declaration and instead what they got was a constitutional right to strike.”

The Saskatchewan courts had upheld that card check certification was constitutional, but at the same time acknowledged secret ballot certification was, as well. It is now left to the provinces to determine the method of certifying a union. In a plus for employers, the Saskatchewan courts recognized the ability for management to communicate with their employees during a labor certification campaign and bargaining. The Supreme Court recognized these previous rulings.

But restoring the rights of public sector workers in Saskatchewan was only one part of the Supreme Court’s ruling. The decision has major implications for labor rights under Canada’s Charter of Rights and Freedoms.

The right of collective bargaining is protected by Section 2(d) of the Charter which covers freedom of association,” says CUPE National President Paul Moist. Inherent in that is the right to collective bargaining. And the ruling on the Saskatchewan case says that part and parcel of collective bargaining is the right to strike, and employers do not have unfettered power to interrupt that fundamental trade union right,”

Labor in the provinces of British Columbia, Newfoundland and Labrador and Nova Scotia will be looking at this ruling closely as these provinces currently have legislation which designates certain public services as essential, thus limiting the ability of workers in those provinces to strike. The Nova Scotia Federation of Labour has already called on the government to scrap the province’s legislation. But each of the provincial labor federations will still have to challenge each individual piece of legislation in court if governments do not act. 

The court has also recently struck down a prohibition that prevented the Royal Canadian Mounted Police from forming a union on the basis of freedom of association.

Friday’s ruling does not invalidate all essential service designations at the provincial or federal level, but it will make sure that those areas deemed as essential will gain fairer bargaining terms, according to Stevens. Government cannot simply impose a settlement unilaterally through legislation. There will now have to be mediation or arbitration

There will be essential service declarations, but it means the employer can’t unilaterally impose a classification without some sort of appeal mechanism,” says Stevens.

Canadian health care workers, which are part of the public sector, have often been the target of essential services legislation.

What essential services legislation has done for health care workers in Canada is given them very little right to strike, and no ability to go to a third party,” such as a mediator, Moist says. It puts you in nowhere land in terms of leverage and bargaining.”

Striking a fair balance in the workplace was an important part of the ruling, as the Supreme Court noted that there is a fundamental imbalance between employee and employer on the job. The ruling states:

In their dissent, my colleagues suggest that s. 2 (d) should not protect strike activity as part of a right to a meaningful process of collective bargaining because true workplace justice looks at the interests of all implicated parties” (para. 125), including employers. In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, 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. 

The Supreme Court also took a global view of labor rights. This ruling also affirms that Canada has international obligations as a signator to ILO (International Labor Organization) conventions further recognizing the right to strike as a fundamental human right,” says Canadian Labour Congress (CLC) President Hassan Yussuff.

This recognition and other recent victories for labor at the Supreme Court bode well for Canadian unions.

In the last two and a half weeks, the court also ruled that freedom of association is a fundamental right protected in our constitution and that that right to collective bargaining is also fundamental,” Yussuff says. These decisions by the court have firmly entrenched the role of collective bargaining in a democratic society, but more importantly the right of workers to join unions.”

The battle over anti-union legislation is not just at the provincial level. Right now, organized labor in Canada is concerned by two bills either working their way through parliament or recently passed in Ottawa: Bills C-377 and C-525.

Bill C-377 seeks to force every labor union in Canada into an onerous accounting of its financial activities to Revenue Canada. It also requires every expenditure of over $5,000 and every salary over $100,000 to be publicly disclosed. 

Passed in December, Bill C-525 abolishes card check certification in federally regulated industries and the federal public sector. It would allow an easier path to union decertification. Only 40 percent of employees in a workplace would be required to call for a decertification vote by secret ballot. 

Like in Saskatchewan, the legislation is motivated by a government committed to an aggressive neoliberal ideology.

I think of all this legislation has no backing. There’s no interest in the business community or managerial world to introduce that bill,” says Stevens. 

With a federal election due by October 2015 at the latest, this means that Canada’s labor movement doesn’t have much time to bask in its court victories. The CLC has expectations for the opposition parties challenging Prime Minister Stephen Harper, the [[social democratic]] New Democratic and [[centrist]] Liberal parties.

We’re hoping that the two opposition parties will both restore card check if they win power. In addition to that, we want them to ensure the right of workers in our country to join unions,” Yussuff says. 

Despite some major legal victories, Canada’s labor movement is going to have to win the political battle by kicking the Conservatives out of power as well if it wants to regain its past power and reverse Canada’s growing economic inequality.

Gerard Di Trolio is an editor for rankand​file​.ca. He has written for Jacobin, Briarpatch and elsewhere, and lives in Toronto. Follow him on Twitter at @gerardditrolio.
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