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Does essential services legislation violate Charter rights?

I wrote last year about the Supreme Court of Canada’s reserved judgment dealing with the Canadian Charter of Rights and Freedoms in terms of the right to collectively bargain (the Fraser case). Well, now, Saskatchewan’s Court of Queen’s Bench, has confirmed that section 2(d) of the Charter (the freedom to associate) includes the right to strike. This is something the courts have historically refused to admit in their decisions. After examining Canada’s international labour obligations, the Court came to the conclusion that Saskatchewan’s recent essential services legislation completely and utterly violated section 2(d) and could not be justified under the Charter. There was no doubt that Canada ratified the International Labour Organization’s Convention 87, and though the convention does not specifically refer to the right to strike, the right of employees to strike is an intrinsic corollary of the right to organize recognized under Convention 87, and this has always been confirmed by the ILO. As a result, the legislation was sent back to the government for necessary modifications.

In a nutshell, Saskatchewan’s Public Service Essential Services Act applies to all public employers and has the effect of adopting a designation/controlled strike model. The “public employers” are defined very broadly to include the government of Saskatchewan, all Crown corporations, regional health authorities and affiliates, the Saskatchewan Cancer Agency, the Universities of Saskatchewan and Regina, all cities, towns, villages and municipalities, all boards that employ police officers, the Saskatchewan Institute of Applied Science and Technology, and all persons, agencies or bodies that the government may prescribe by regulation.

Then in 2009, the government enacted The Public Services Essential Services Regulations, which prescribed numerous government services and programs as “essential.” The legislation requires negotiation of an essential services agreement between the parties at least 90 days before the expiry of their collective agreement. If no agreement could be reached by 30 days before the expiry, the government could serve notice listing the classifications, numbers and names of employees who had to keep working during a strike to maintain essential services.

What’s more, the Saskatchewan Labour Relations Board was given minimal authority to review the numbers of employees required to work in each classification, but no authority whatsoever to review the services designated by the employer or the specific persons who had to work during a strike.

Clearly, the unions were not happy with this enactment. It amounted to the most restrictive essential services legislation in the country.

First, the National Union of Public Employees and the Canadian Labour Congress complained to the ILO on behalf of the Saskatchewan Federation of Labour and argued that the government’s essential services changes impeded workers from exercising their fundamental right to strike. The ILO’s Committee on Freedom of Association heard the complaint and noted:

  • The right to strike can be prohibited in essential services only in the strict sense of the term (where the interruption of the service would endanger the life, personal safety or health of the whole or part of the population); this meant that very few services should be considered “essential” (namely, hospital, electricity, water supply, telephone, police/armed forces, firefighting, prison, food and cleaning of schools and air traffic control), and the government could not unilaterally declare most of the services listed in the legislation as “essential”
  • There was a significant concern about the unilateral naming of essential services, classification as well as the numbers and names of persons who had to work during a strike without the review by an independent body
  • It was troubling that the legislation provided no compensation for the public sector employees who lost their right to strike

The committee recommended that:

  • The government take measures to consult with the social partners to amend the legislation to ensure that the Labour Relations Board had the authority to examine all aspects relating to the determination of an essential service (sectors, classifications, numbers, names who had to provide services), and to act rapidly in the event of a challenge arising in the middle of a labour dispute
  • The legislation setting out a list of prescribed essential services be amended in consultation with the social partners
  • The government ensure necessary measures were taken to compensate the workers whose right to strike was restricted or prohibited

At the Court of Queen’s Bench, the unions relied on this report setting out the recommendations.

The Court, for the first time in history, looked to Canada’s international obligations, and added significant clarity by confirming that Convention 87 indeed included the right to strike. The Court further confirmed that when legislation prevents workers from engaging in the right to strike by unilaterally declaring numerous services as “essential,” that legislation could be ruled unconstitutional under section 2(d) of the Charter, unless justified under section 1.

This case amounts to a giant leap forward for labour, given that a Canadian court finally made a decision in accordance with its international obligations. However, it is best to not get too excited at this point. It remains to be seen whether this decision will be upheld on appeal. Notwithstanding the caution, the decision included a thorough examination of Canada’s international obligations, and it appears likely that this decision will be upheld.

What do you think the government will do to modify the legislation? Do you think constitutionalizing the right to strike in 2(d) of the Charter is going too far, or does it constitute progress?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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