Hassan Yussuff is president of the Canadian Labour Congress
The Supreme Court has reaffirmed the centrality of collective bargaining and the right to strike to Canadian democracy. In a 5-2 decision, the Court has ruled that the right to strike is protected by the Canadian Charter of Rights and Freedoms.
This is a courageous decision, one that all Canadians should celebrate.
The decision is an important win for all of us because it recognizes once again that there is a fundamental power imbalance in the workplace that favours employers over employees, and that the right to strike restores balance and promotes equality in the bargaining process.
Does this mean we'll see more strikes? Of course not. No union goes into bargaining looking to send their members out on strike. As the Court recognizes, "strike action has the potential to place pressure on both sides of a dispute to engage in good faith negotiations." What it does mean is that employers and unions alike will collaborate more and that more negotiations will successfully conclude with fair collective agreements.
The decision strikes down legislation that the Saskatchewan government hoped would allow it to sidestep that collaborative approach completely. The legislation meant the government could unilaterally determine which workers were essential and which were not. It removed all possible recourse for the workers affected. It was devoid of any independent, effective dispute-resolution process, and handcuffed the Saskatchewan Labour Relations Board.
As the Court ruled, "no other essential services agreement in Canada comes close to prohibiting the right to strike as broadly, and as significantly."
There is no justification for this approach. Unions and employers have successfully used a collaborative approach to negotiate essential service agreements time and again. And time and again unions have fully agreed that some services are essential to the public good.
The Court found "no evidence to support Saskatchewan's position that the objective of ensuring the continued delivery of essential services requires unilateral rather than collaborative decision making authority."
Strikes will always be the last resort in collective bargaining. But it's strikes that make the news. The reality is that the vast majority of collective agreements – 94 per cent in the federal jurisdiction alone – are settled without a work stoppage.
This decision won't change the labour movement's commitment to protecting public health and safety during labour disputes. Health providers, emergency services workers, and critical infrastructure workers will continue to put the safety and well-being of the public first.
We should also take pride, as Canadians, that this brings our law in line with Canada's international commitment to the right to strike. Canada is a party to United Nations conventions recognizing the right to strike, as well as International Labour Organization Convention no. 87 concerning freedom of association and the right to organize. These undertakings commit Canada to upholding the right to strike.
This decision comes on the heels of another Supreme Court decision last week that recognized the right of the RCMP – indeed all workers in Canada – to choose independent associations to engage in meaningful collective bargaining. That confirmed what workers have known instinctively all along; that the right to choose an independent association to engage in collective bargaining forms the essence of freedom of association.
This week, the Court has recognized again that in effect, workers collective rights are human rights. As the decision says, the right to strike is essential to realizing Charter values of "human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy."
As Justice Abella wrote in the Court's decision, "clearly the arc bends increasingly towards workplace justice."