Essential services and the right to strike.

• Author: Gordon, Matt

On January 30, 2015, the Supreme Court of Canada decided Saskatchewan Federation of Labour v Saskatchewan("SFL"). In a 5-2 decision, the Court determined that the Public Service Essential Services Act("PSESA"), in restricting certain public sector workers' rights to strike, violated freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms("Charter"). Another piece of impugned legislation, the Trade Union Amendment Act ("TUAA"), which focuses on the union certification process and employer-employee communications, was found to be in accordance with the Charter.

The Supreme Court grappled with a central question that occupied most of the decision, both for the majority and dissent: does restriction on the right to strike violate s 2(d) of the Charter, and why? This past January, the majority of the Supreme Court came through with an emphatic decision that the workers' right to strike is a fundamental Canadian value. This is a tough decision because it engages two contrasting Canadian values: the necessity for Canadians to have essential services like police officers and firefighters available at a moment's notice, and the importance of employee voice in the workplace.

The extent of s 2(d) on labour relations has a tumultuous recent history, having been considered twice earlier by the Supreme Court since 2007. The Supreme Court's decision in SFL demonstrates the difficulty associated with the application of Canada's highest law to conditions of employment. There are still questions left unanswered which will likely be the impetus for upcoming litigation.

Background

SFL dates back to 2007, when Saskatchewan's provincial government passed these two statutes. Both came into force on May 14, 2008. The Saskatchewan Federation of Labour and other unions challenged the constitutionality of PSESA and TUAA on the basis that they interfered with their right to freedom of association under s 2(d) of the Charter. The right to collective bargaining rooted in good faith negotiation was confirmed in 2007 in the BC Health Services case. By the time SFL went to trial in 2012, the Supreme Court had decided Ontario (Attorney General) v Fraser("Fraser"). In Fraser, the Court clarified the rights accorded in BC Health Services through the determination that workers do not have the right to a particular type of collective bargaining or substantive outcome but still have the right to a good faith bargaining process of some...