Cabinet has suffered another blow at the Supreme Court as justices struck down legislation that limits the right to strike. The Court ruled 5-2 the right to withdraw services is constitutional and should be enshrined in the Charter.
“The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right,” wrote Justice Rosalie Abella for the majority. “It seems to me to be the time to give this conclusion constitutional benediction.”
The ruling came in the case of a Saskatchewan Act, later mirrored in a copycat federal bill, that granted public employers unchecked powers to decide which workers were “essential”, and therefore forbidden from striking. The Saskatchewan legislature has one year to repeal its Public Service Essential Services Act.
The Regina legislation enacted in 2008 had applied to all public employers including municipalities, universities, police boards and Crown corporations. Justice Abella said the law failed to account for “an adequate, impartial and effective alternative mechanism for resolving collective bargaining impasses”.
“Where essential services legislation provides such an alternative mechanism, it would be more justified under section 1 of the Charter,” Abella wrote. “In my view, the failure of any such mechanism in Public Service Essential Services Act is what ultimately renders its limitations constitutionally impermissible.”
The ruling effectively kills an identical law enacted by the federal cabinet in 2013 amending its own Public Service Labour Relations Act. The federal amendments gave cabinet “the exclusive right to determine whether any service, facility or activity of the Government of Canada is essential because it is or will be necessary for the safety or security of the public or a segment of the public.”
Other Union Bill Okayed
In a companion ruling, the Supreme Court today upheld the constitutionality of another Saskatchewan bill, the Trade Union Amendment Act, that made it easier to decertify unions. The Act lowered the threshold of votes required to trigger a decertification drive from 50 percent to 45 percent.
“These requirements are not an excessively difficult threshold such that workers’ right to associate is substantially interfered with,” the Court ruled. A similar federal bill C-525, lowering the threshold to 40 percent, passed the House and Senate and is due to become law June 16.
Bill C-525 also repealed the card-check system in federally-regulated industries, a decades-old system that allowed union supporters to sign membership cards to certify a bargaining agent. The Conservative bill replaced card signatures with a secret ballot.
By Dale Smith