Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2015 CANADIAN LABOUR REPORTER news Photo: Chris Wattie (Reuters) Public sector employees have right to strike: SCC < from pg. 1 The right to strike is inherent in our constitution, according to the Supreme Court justices, who voted 5-2 to scrap the legislation. "where strike action is limit- ed in a way that substantially in- terferes with a meaningful pro- cess of collective bargaining, it must be replaced by one of the meaningful dispute-resolution mechanisms commonly used in labour relations," the court's decision noted. "Those public sector em- ployees who provide essential services have unique functions which may argue for a less dis- ruptive mechanism when col- lective bargaining reaches an impasse, but they do not argue for no mechanism at all." now, wall and his government have one year to redraft the legislation to the Supreme Court's standard. The Saskatchewan Federation of Labour legally challenged the legislation in its original form and has been fighting it in the courts, calling the law a violation of an individual's right to strike under the Charter of Rights and Freedoms. The victory, according to the federation's president Larry Hubich, will bolster the labour movement. "This legislation goes beyond what is reasonable and fair and balanced in the provision of es- sential services or emergency services," he noted. "It's very good, it's a strong de- cision. It will set an enormous precedent. Once and for all, the Supreme Court of Canada has said that the right to strike is protected by section two of the charter — and if the government wants to make modifications to that right, then they have to justify it." In making their decision, the majority judges said freedom of association was a fundamental right, not a derivative one. "It is not the threat of work stoppage that motivates good faith bargaining," the decision read. "It is the statutory duty, and now it is the constitutional duty, not the possibility of job action, that compels employers to bar- gain in good faith. To say that this constitutional right is meaning- less without a concomitant con- stitutionalized dispute resolution process would be to say that indi- viduals can never vindicate their rights through the courts or other public institutions." It is for this specific reason that the decision is so groundbreaking, Hubich added. "(The right to strike) does not flow simply from a worker's right to engage in collective bargaining, it actually is a fundamental right that forms part of that process." As the province gears up to change its labour relations leg- islation, reports pointed to the possibility of invoking the notwithstanding clause, some- thing Hubich said the federation frowns upon. Should wall elect to use the clause, he would override the charter citing fundamental free- dom and legal and equality rights. Legislating labour when it comes to the courtroom, John Mortimer — president of Labour watch, a union watch- dog organization based in British Columbia — said labour has been given a revolving-door treatment. "For a long time, the Supreme Court said labour law is a crea- ture of Parliament," he said. "now they've decided, 'no, we're wrong. Labour law rises from fundamen- tal, inherent human nature.'" Essential services legislation has long been practised and de- cried in labour circles. In recent years, Ottawa has legislated back-to-work rules during wild- cat strikes at Canada Post and Air Canada, back when it was a Crown corporation. The trouble with essential ser- vices legislation is that one party — in this case, governments as employers — typically goes too far across the line, Mortimer said. One such way to mitigate ex- tremism would be to implement checks and balances across the relationship with public sector workers. That might include giv- ing provincial labour boards the authority to decide in such dis- putes rather than leaving it up to the employers. "we'll have to wait and see where they're going to move the goalposts next," he said. "If the Saskatchewan govern- ment had have had interest ar- bitration or final offer selection, had they had given more author- ity to the labour to decide the dispute, rather than the employ- er getting to unilaterally decide everything." This legislation goes beyond what is reasonable and fair and balanced in the provision of essential or emergency services. Canada's top court has struck down a Saskatchewan law that prohibited certain public sector employees from striking. The court has given the province one year to align itself with the Charter of Rights and Freedoms.

• Cover