Employees’ right to strike constitutionally protected in Canada

April 16th, 2015 by

On January 30, 2015, the Supreme Court of Canada released a bold and exciting decision regarding the right to strike.

The majority of the Supreme Court held that the right to strike is constitutionally protected by s. 2(d) the Canadian Charter of Rights and Freedoms. This section of the Charter guarantees freedom of association.

This issue was brought to the Supreme Court as a result of the enactment of Saskatchewan’s Public Service Essential Services Act (the “PSESA”). The Government of Saskatchewan introduced this legislation in an attempt to ensure that the public is provided with the adequate provision of essential services during labour disputes. The PSESA abolishes the ability of public sector employees who provide “essential services” to strike. The PSESA does not provide any other meaningful alternative mechanism for resolving bargaining impasses.

Justice Abella held that the right to strike is an essential part of a meaningful collective bargaining process. She concluded that the right to strike is not just a component of collective bargaining, but rather,  “it is an indispensible component of that right.”  As a result, the provisions in the PSESA that eliminate the right to strike amount to a substantial interference with collective bargaining. Furthermore, the Supreme Court concluded that these provisions go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.

Paul Moist, the national president of Canadian Union of Public Employees stated:

“This is a historic precedent for CUPE, public sector unions, and the entire labour movement.”

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