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SCC Upholds Right to Strike for Public Service Employees
February 6, 2015
Author(s): Connor F. Levy

In a landmark decision, the Supreme Court of Canada has declared Saskatchewan’s Public Service Essential Services Act (PSESA) to be constitutionally invalid. In doing so, the Court affirmed employees’ constitutional right to strike.

In 2007, the government of Saskatchewan introduced the PSESA, under which any public service employees designated as essential are prohibited from engaging in a work stoppage. Work is designated as an essential service by the government by regulation, or unilaterally defined as an essential service by public sector employers. Although public sector employers and their union counterparts are required by PSESA to negotiate the classification of employees, along with the number and names of employees to be maintained in the event of a work stoppage, the employer can make unilateral designations if an agreement cannot be reached. In addition, only the number of employees required to perform essential services was reviewable by the Saskatchewan Labour Relations Board under the Act. The PSESA was challenged by a number of public sector unions and the Saskatchewan Federation of Labour as unconstitutional.

At trial, PSESA was deemed to be in breach of section 2(d) of the Canadian Charter of Rights and Freedoms, which protects the right to freedom of association. The Saskatchewan Court of Appeal reversed the trial judge’s decision, and the matter proceeded to the Supreme Court of Canada.

The Court reversed the Court of Appeal’s decision and affirmed the trial judge’s decision. The majority of the Court noted that the test for a section 2(d) infringement is whether the legislation in question substantially interferes with employees’ ability to engage in collective bargaining. The majority of the Court noted the importance of strike action in balancing the inequality in the workplace. It held that the ability to strike is necessary in order for employees to realize their values and objectives through collective bargaining. By preventing employees from engaging in work stoppages, PSESA violated section 2(d) of the Charter.

Further, the legislation granted government and employers the unilateral power to determine what was an essential service. In addition, public employers could unilaterally determine essential levels and who would continue to work during a stoppage, with limited review of these decisions by the Saskatchewan Labour Relations Board. As a result, the majority of the Court determined that the contravention of section 2(d) was not minimally impairing, which is required under section 1 for the government to justify a Charter infringement. The Court therefore concluded that PSESA breached the Charter and declared PSESA unconstitutional. The  Saskatchewan Provincial government was granted one year to amend the legislation.

This decision is significant as it provides constitutional protection to the right to strike for all employees. Governments will need to scrutinize their essential services and related legislation to ensure consistency with the Court’s decision.

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4

Questions relating to the content of the article may be directed to Lindsie Thomson.