In 2008, the Government of Saskatchewan introduced legislation restricting the ability of public sector workers to engage in strike activity. The Public Service Essential Services Act (PSESA) defines “essential services” and contemplates that public sector employers and unions will negotiate essential service levels in the event of a strike. Where an agreement cannot be reached, the employer may unilaterally issue a notice to the union setting out the essential service levels. The union may apply to the Labour Relations Board to review the notice. Employees designated as essential must continue or resume their regular duties and may not participate in the work stoppage.
The affected unions challenged the legislation and the Saskatchewan Court of Queen’s Bench concluded that PSESA’s restrictions on the right to strike violated the unions Charter protected right to freedom of association.
The Court of Appeal allowed the Government’s appeal, finding that the PSESA ’s restrictions did not violate the Charter. Notably, the Court reviewed Supreme Court of Canada’s decisions interpreting freedom of association Charter rights and concluded that those decisions only protect the right of employees to organize, to make collective representations to their employers and to have those representations considered in good faith. As a result, a mechanism for resolving bargaining impasses, including the right to strike, is not a constitutionally protected right.
The Court of Appeal’s decision also addressed a challenge to the Government of Saskatchewan’s Trade Union Amendment Act (TUAA), which made it somewhat more difficult for unions to obtain certification as bargaining agents. The TUAA increased the threshold of signed union membership cards prompting a certification vote from 25% to 45%. The TUAA also eliminated automatic certification once a union acquires signed membership cards of over 50% of the employees in the proposed bargaining unit. Instead, the union must establish majority support in a secret ballot vote conducted by the Labour Relations Board. The Court of Queen’s Bench found that TUAA did not infringe upon the freedom of employees to organize and to bargain collectively through a union of their own choosing, and the Court of Appeal upheld the lower court’s decision.
On October 17, 2013, the Supreme Court of Canada granted leave to appeal the Saskatchewan Court of Appeal decision in Saskatchewan Federation of Labour (in its own right and on behalf of the unions and workers in the Province of Saskatchewan), et al. v. Her Majesty the Queen, in Right of the Province of Saskatchewan. It is anticipated that the Supreme Court of Canada will hear the appeal of this matter in the Spring of 2014.
Any questions relating to the information in this article may be directed to Chris Leenheer, Partner.