The Court of Queen’s Bench for Saskatchewan has ruled that the right to strike is protected by the freedom of association provisions of Charter of Rights and Freedoms.
In a decision released in February 2012, the Saskatchewan Court held that that province’s Public Service Essential Services Act (“PSES Act”) substantially infringes on the right of employees to engage in collective bargaining and collective strike action, rights which are protected by the Charter’s section 2(d) freedom of association provision.
The intent of the PSES Act is to allow the Saskatchewan government to designate certain public sector employees as providing “essential services,” thereby requiring these employees to remain at work, even while their representative union is engaged in lawful strike activities.
The Saskatchewan Court found that the PSES effectively allows the government, as a public sector employer, to unilaterally designate certain employees as essential, and does not provide a dispute resolution mechanism whereby an affected union can challenge the “essential service” designation.
The Court held that the right to strike is a fundamental freedom protected by section 2(d) of the Charter, along with the interdependent rights to organize and to bargain collectively. According to the Court, the PSES Act is unconstitutional as it substantially interferes with this constitutionally protected right to engage in meaningful strike activities, as an essential aspect of collective bargaining.
The Court went on to find this substantial interference with the right to strike could not be justified under section 1 of the Charter. This was so, in part, because the government had adopted an overly restrictive approach to the essential service designation process, which did not allow an affected union to challenge an employer’s decision on which employees must remain at work during a strike.
According to the Saskatchewan Court, no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly and significantly as the PSES Act. And, no other essential services legislation in Canada was “devoid of access to independent, effective dispute resolution processes to address employer designations of essential services workers.”
The Saskatchewan Court’s holding that the right to engage in meaningful strike action is protected by the Charter is an issue which could make its way to the Supreme Court. The Saskatchewan Court has given the government a twelve month window in which to remedy the Charter deficiencies contained in the PSES Act.