Ratified treaties;¹ Work of international supervisory bodies²

Canadian Charter of Rights and Freedoms/ Right to strike/ Right to collective bargaining/ Law limiting the exercise of the right to strike of employees providing essential services/ Use of international law as a guide for interpreting domestic law

An appeal was filed with the Canadian Supreme Court, in which the appellants disputed the constitutionality of two laws adopted by the government of Saskatchewan. According to the appellants, the Public Service Essential Services Act, SS 2008 c. P-42.2 (hereinafter the PSESA) and the Trade Union Amendment Act 2008 were in breach of Article 2(d) of the Canadian Charter of Rights and Freedoms with respect to freedom of association.

The PSESA defined a legislative scheme that prohibited the exercise of the right to strike by public sector employees who provided essential services, so that these employees were required to continue to carry out their duties in accordance with the terms established by the collective agreement, with no effective mechanism provided to resolve the deadlock in collective bargaining. The Trade Union Amendment Act 2008 amended the trade union certification process by increasing the percentage of employee support required and reducing the period within which this support had to be obtained in writing. It also amended the rules on the employer’s communication with its employees.

While the Supreme Court rapidly dismissed the legal question concerning the constitutionality of the Trade Union Amendment Act 2008, stating that this law “did not breach s. 2(d)”,³ with respect to the PSESA, the Court was confronted by the legal question of determining whether the freedom of association guaranteed in Article 2(d) of the Charter protects the right to strike and, if so, to examine whether the prohibition on employees providing essential services taking part in a strike substantially hinders the right to a true collective bargaining process.

The Court made a very significant change to its case law as it recognised for the first time that “the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining”.⁴

In support of its argument, the Court specifically relied on Canada’s accession to international instruments recognising the right to strike, as well as other sources of international law. It specifically referred to Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights, Article 45 of the Charter of the Organization of American States as well as ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).⁵

In this respect, the Court highlighted: “Although Convention No. 87 does not explicitly refer to the right to strike, the ILO supervisory bodies, including the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations, have recognized the right to strike as an indissociable corollary of the right of trade union association that is protected in that convention”.⁶ Referring to the digest of decisions and principles of the Committee on Freedom of Association, it added: “Though not strictly binding, the decisions of the Committee on Freedom of Association have considerable persuasive weight and have been favourably cited and widely adopted by courts, tribunals and other adjudicative boards around the world, including our Court”.⁷

The Court also relied on the international consensus reached concerning the necessity of the right to strike to meaningful collective bargaining by citing the case law of the European Court of Human Rights.⁸

Based on the above, the Supreme Court deduced “that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. The ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is, and has historically been, the irreducible minimum of the freedom to associate in Canadian labour relations.”⁹

It continued its examination by analysing the infringement on the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. In this respect, the Court believed that the fact that the PSESA prohibited the employees concerned from taking part in a strike for the purpose of negotiating their conditions of work substantially hindered the right to a real collective bargaining process, and therefore infringed on the freedom guaranteed by the Charter.¹⁰

At this point, the crucial question, according to the Court, was whether the arguments maintained by the state breached constitutional rights as little as possible, or otherwise.  Analysing the provisions of the PSESA, the Court noted that “The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the conclusion that the PSESA is not minimally impairing. It is therefore unconstitutional”.¹¹ The Supreme Court thus ruled the PSESA 2008 unconstitutional, strengthening its reasoning on the basis of ratified international treaties, including Convention No. 87 and the work of the ILO’s Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations.