An important case has made its way to the Supreme Court of Canada that could redefine our right to “freedom of association.”
It all began in 2008 when the new Saskatchewan government enacted two pieces of legislation — The Public Service Essential Services Act (PSESA) and The Trade Union Amendment Act (TUAA).
PSESA places new obligations on both public sector unions and the provincial government such as time requirements on renegotiating collective bargaining agreements and placing limits on striking employees during a work stoppage. TUAA introduces new requirements within public sector unions such as new time limits on claims and stricter requirements for union certification votes. The Saskatchewan government’s objective with both of these acts was to guarantee essential services and minimize societal harm during labour disputes.
The new Saskatchewan government wanted to avoid difficult situations such as the painful 1999 nurse strike and the 2001 CUPE health worker strike. Both of these resulted in critical health services being delayed due to walkouts in Saskatchewan where some patients literally had to be airlifted to neighbouring provinces during the crises.
Almost immediately, public sector unions in Saskatchewan challenged the legislation’s constitutionality, arguing their rights under Section 2(d) of the Charter (“freedom of association”) would be violated. This goes beyond the traditional understanding of “freedom of association” as a “negative right” meant to give protection from others and from the overreach of the state. The public sector unions involved in this case want the right to be interpreted as a “positive right,” obligating action and a “right to strike.” Essentially this would mean redefining this right as an entitlement rather than a protection.
In 2012, the Saskatchewan Court of Queen’s bench sided with the public sector unions. However in 2013, the Saskatchewan’s Court of Appeal sided with the provincial government.
Now this case has made its way to the Supreme Court of Canada.
If the Supreme Court rules Section 2(d) includes the right for public servants to strike, it will greatly inhibit the government’s ability negotiate with unions on an equal standing.
The CCF believes public sector employees should have mechanisms to negotiate terms of employment, but creating a “right” to strike for public unions distorts genuine human rights. It could also create a dangerous precedent by giving public unions the power to hold governments “hostage” as they threaten to cut off essential services. In more than a few public union strikes in Saskatchewan in the past, the courts found the consequences of a unilateral walkout to be very damaging to society. Imagine if these types of strikes were viewed as constitutionally condoned!
At the CCF we believe freedom of association means what it has always traditionally meant: the right to join or leave groups of a person’s own choosing.
This is why the CCF intervened on the side of the Government of Saskatchewan in this seminal Supreme Court challenge and made arguments before the high court to prevent it from expanding “freedom of association” from a meaningful negative right to be free from government interference into a positive entitlement. We await the Court’s decision.
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