Top court upholds Canadian workers’ right to strike

SHAFAQNA (International Shia News Association)- Canadian workers have a constitutional right to strike, the Supreme Court ruled Friday morning.

“The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations,” Justice Rosalie Abella wrote for the majority in a 5-2 ruling.

Governments are permitted to limit the right to strike for essential workers, but no more than necessary, the majority said. It also said that not all public-sector workers should necessarily be considered to do essential services.

The ruling comes in a Saskatchewan case in which public-sector unions challenged a 2008 provincial law passed by Premier Brad Wall’s Saskatchewan Party that limited the right to strike by workers deemed by the government to be in essential services, such as jail guards. In the previous two decades, Saskatchewan had ordered striking public-sector workers back to the job on 10 separate occasions. But the law gave the government the unilateral right to decide which workers were essential, and it denied them access to effective alternatives for resolving labour disputes, Justice Abella said.

“The right to strike also promotes equality in the bargaining process,” she wrote. “This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. While strike activity itself does not guarantee that a labour dispute will be resolved in any particular manner, or that it will be resolved at all, it is the possibility of a strike which enables workers to negotiate their employment terms on a more equal footing.”

The case is the latest of several – including one two weeks ago – in which the Supreme Court has reconsidered its employer-friendly rulings from 1987 that found no constitutional right to collective bargaining or joining a union, and no right to strike. Overturning the first two of those rulings, the court established a right to meaningful collective bargaining in in 2007, and then this month ruled that the Canadian government unfairly denied Mounties their right to unionize.

Declaring a constitutional right to strike would be a change of “seismic proportions” to Canadian labour law, the Saskatchewan Attorney-General’s Ministry told the Supreme Court in its written argument. It would affect labour laws around the country. Saskatchewan said it could even jeopardize matters such as the prohibition on strikes during the life of a collective agreement; the requirement to hold a strike vote by secret ballot before a strike action; and the requirement to give at least 48 hours written notice of any strike action.

At issue is Section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association. The Supreme Court gave that right a ringing endorsement in the Mountie union case this month, reaching back to the words of a liberal-minded dissenting judge from 1987 – chief justice Brian Dickson – who said that association enables those “who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.”

The Saskatchewan Federation of Labour cast its argument in similar terms. “The right to withdraw labour is a universal human right,” it said. “The recognition of the importance of work in a person’s life [by the Supreme Court] requires the Court in applying the Charter to protect the ongoing ability of employees to find meaning and fulfillment in their employment relationships. The collective action of workers in work stoppages in pursuit of common goals is how workers exercise autonomy and participate in self-government in the workplace. These values play a central role in the interpretation of both freedom of association and expression.”

The case attracted a variety of unions and governments intervening to make arguments on both sides of the issue.

The British Columbia Civil Liberties Association said the freedom of association should be understood in its relationship to freedom of expression. “By collectively withdrawing their labour in order to further their common goals, workers are engaging in conduct that is both associational and expressive in nature. They are banding together, in pursuit of their common interests. That is associational. And in doing so, they are, among other things, communicating a position to their employer, and perhaps others, such as members of the public, and seeking to persuade them to accept their collective bargaining goals. That is expressive.”

The Canadian Constitution Foundation, a conservative advocacy group, said the right to strike is created by government through laws, and governments have the authority to change those laws if they wish. Such rights [as the right to strike] involve a significant intrusion upon the constitutional role of the legislatures, and involve courts in complex matters of economic regulation,” the group said in its written argument filed with the court.

The Saskatchewan trial judge who heard the case ruled in favour of a right to strike, but the province’s Court of Appeal overturned that ruling, saying only the Supreme Court could overturn its earlier precedent.

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