Workers in Saskatchewan, and across Canada, won a significant legal victory on February 6, 2012. Justice Dennis Ball ruled that the right to strike is a protected freedom for all workers under the Canadian Charter of Rights and Freedoms.
He also found that the right to strike is protected by international law, and that governments are bound by international law when assessing the constitutionality of our laws under the Charter. Download Justice Ball's decision here....
As a result of these findings, he ruled that the Sask. Party government’s “essential services” legislation (also known as Bill 5), violates our fundamental freedoms and human rights. He said the law, in its entirety, is unconstitutional.
The Judge said that when a law violates the Charter, if the government has failed in its duty to consult prior to passing the law, the law must be struck down. Just like the United Nations’ International Labour Organization (ILO) warned the Saskatchewan government, they must consult with citizens before introducing legislation that affects Charter rights.
Justice Ball even paid attention to the role of government as employer. He said that governments cannot use their sovereign power to legislate in a manner that eliminates the obligation to respect their employees’ collective bargaining rights.
What happens now?
The Judge ruled that the invalidity of the old law is suspended for 12 months, to give the government time to fix it if possible.
The government is appealing the Judge’s ruling that freedom of association includes the right to strike, in the hopes that, if they win, Bill 5 will stay in force. At the Saskatchewan Court of Appeal, the unions will defend the right to strike finding, and will cross-appeal on the unconstitutionality of Bill 6 (the 2008 changes to The Trade Union Act).
What about Bill 6?
The Judge did not agree with our argument that the changes to The Trade Union Act violated workers’ fundamental freedoms under the Charter. He did not, however, dispute our facts about the number of union certifications decreasing since the passing of the laws. Regarding employer communication, he says “even a reasonably courageous employee can be cowed by employer statements that directly or implicitly threaten negative consequences if the wishes of the employer are opposed.”
What kind of input will labour have into any new essential services law?
Minister Don Morgan asked us for written feedback, with a deadline of two weeks. Working people’s organizations (which already submitted feedback on Bill 5 and 6 to the government when it was introduced, and also to the court in its written and oral arguments) have asked for face-to-face meetings to discuss what kind of consultation would comply with Judge Ball’s decision.
What are the remedies?
The Judge has agreed to hear submissions on remedies for the violation of working people’s rights.
Five little-known facts about the Bills 5 and 6 Charter challenge
1. Non-affiliated unions who joined in solidarity with the SFL et al: 3 (Health Sciences Association of Saskatchewan, University of Regina Faculty Association, and Teamsters local 395.)
2. Number of lawyers who participated in the trial (from both sides): 19
3. Total days of argument: 12
4. Number of pages filed with the Court: approximately 15,000
5. Employers who intervened in the case (SAHO, the Saskatoon Regional Health Authority, SaskPower, SaskEnergy, the University of Regina, the University of Saskatchewan, City of Regina, City of Saskatoon, SUMA and SARM) argued that management should have the final say in who can strike and who cannot.
“I am satisfied that the right to strike is a fundamental freedom protected by s.2(d) of the Charter along with the interdependent rights to organize and to bargain collectively. That conclusion is grounded in Canada’s labour history, recent Supreme Court of Canada jurisprudence and labour relations realities. It is also supported by international instruments which Canada has undertaken to uphold.”
— Justice Dennis Ball, Saskatchewan Court of Queen’s Bench, February 2012
“The ultimate truth of free collective bargaining is that it can only operate effectively, in market terms, if it is backed up by the threat of economic sanction.”
— Justice Ball, quoting Rayner
“...the evidence clearly established that substantive consultations with respect to the PSES Act took place only between the Government and employer groups. It also establishes that although the largest public sector Unions made every effort to meet with the Government representatives in order to have meaningful input into the legislation, their efforts were unsuccessful. Any consultation with the Unions about the PSES Act was superficial at best.”
“It is enough to say that no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly, as the PSES Act. No other essential services legislation is as devoid of access to independent, effective dispute resolution processes...”
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