Late last week, the Supreme Court of Canada issued a potentially earthshaking decision for the country’s labour relations when it struck down a Saskatchewan law that prevented public-sector workers from striking.
The decision essentially means that the right to strike is constitutionally protected, and that ruling could end up reverberating coast to coast.
"Today's decision levels the playing field for workers by placing checks on the power of governments, as employers, to legislate unfair essential services arrangements that tip the scales in management's favour," said Canadian Labour Congress president Hassan Yussuff.
“This case establishes a high threshold for justifying laws that limit the right to strike,” write labour lawyers George Avraam and Jennifer Bernardo.
“However, the Court recognized the competing interests of workers on the one hand, and employers and the public on the other. In particular, the Court recognized that it is acceptable for the government to restrict the ability of workers to strike when they are needed to provide essential services, so long as the restrictions are justified and proportionate.”
In this case, the court ruled that Saskatchewan’s awkwardly named 2008 Public Service Essential Services Act granted disproportionate power to employers. It allowed them to unilaterally decide who “essential” workers are, thus restricting their right to strike.
Saskatchewan’s Federation of Labour argued that the law infringed on the charter right to freedom of expression and association. The top court agreed that the PSESA granted too much power to employers and was unconstitutional.
However, the Saskatchewan decision isn’t a nail in the coffin for essential-services laws, which aren’t unconstitutional in and of themselves. The Supreme Court gave the province one year to craft new legislation that doesn’t trample worker rights.
The decision could spur challenges to essential services laws in other provinces, including British Columbia and Newfoundland and Labrador.
Nova Scotia’s 2014 Essential Health and Community Services Act is already facing a legal challenge based on some similarities to Saskatchewan’s PSESA. The province’s law doesn’t grant employers the same unilateral power as Saskatchewan’s, although labour unions say it still goes too far.
Their legal challenge was on hold until the SCC’s ruling, but unions are now asking the province to repeal its law. The labour minister said she is “confident in our legislation,” so there may be another big labour case before the courts soon.