In early 2008, the recently elected government of Saskatchewan enacted the Public Service Essential Services Act (PSESA), and the Trade Union Amendment Act (TUAA). The Saskatchewan Federation of Labour challenged the constitutionality of both statutes. Recently, the Saskatchewan Court of Queen’s Bench struck down the PSESA as unconstitutional, but upheld the validity of the TUAA.
Prior to the implementation of the PSESA, unions in Saskatchewan were permitted to unilaterally decide which essential services would be provided during a strike, if any. The PSESA transferred this unilateral power, in its totality, to the employers. The PSESA also identified broad categories in which public sector employers could designate services essential.
In a lengthy judgment, the Court reviewed many Supreme Court of Canada cases including the recent decision of Ontario (Attorney General) v. Fraser. On the basis of these decisions, the Court confirmed that the right to strike is a fundamental right protected as freedom of association under Section 2(d) of the Canadian Charter of Human Rights and Freedoms. The Court concluded that the PSESA violated the Charter as it enabled employers to effectively eliminate the capacity of public sector employees to conduct a meaningful strike.
The Court then considered whether the constitutional breach could be justified under Section 1 of the Charter. The Court observed that under the PSESA, the Saskatchewan Labour Relations Board held very limited powers to review employer decisions on essential services, and that no other essential services legislation in Canada was as devoid of independent administrative oversight of employer designations or effective dispute resolution processes. In the absence of such oversight and processes, the Court found that the PSESA could not be justified under Section 1, and must be struck down. The invalidity of the PSESA was suspended for 12 months in order to provide the legislators with an opportunity to amend the statute.
The Court found that the provisions of the TUAA, on the other hand, only elevated certain pre-existing requirements for the certification of bargaining units, and altered some restrictions on employer communication with employees during organizing drives. These provisions did not violate the Charter as they did not bar employee access to collective bargaining.