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On a Roll: Canadian Supreme Court Follows Right-to-Unionize Vote with Affirmation of Right to Strike

Now picture Antonin Scalia appearing this pleasant (hint: it's not possible!)

Now picture Antonin Scalia appearing this pleasant (hint: it’s not possible!)

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In a 5-2 vote, the Canadian Supreme Court has reaffirmed that a worker’s right to strike is protected by the Canadian Charter of Rights and Freedoms.  The court ruled “that the right to strike is an essential part of the collective bargaining process in Canada’s system of labour relations.”  The court also ruled that while governments have the right to limit the right to strike for workers who perform essential services, “they should not limit this right more than necessary.”  

As United Food and Commercial Workers (UFCW) national president Paul Meinema said in a statement:

“We applaud the Supreme Court for affirming workers’ right to strike in Canada.  The right to withdraw labour is a universal human right that is essential to ensuring fairness in the collective bargaining process.”

The landmark ruling comes in response to the Saskatchewan Federation of Labor’s legal challenge of a 2008 provincial law that limited who could and could not strike.  Opponents of the law argued that the Saskatchewan government hoped the legislation would help them sidestep the collaborative approach altogether, allowing the government to unilaterally determine who was essential and who was not.  The legislation did not include any type of dispute resolution process and was handcuffed by the Saskatchewan Labour Relations Board.  

In striking down the law the court ruled that it “prohibits unilaterally designated essential service employees from participating in any strike action against their employer,” and gives them “no meaningful mechanism for resolving bargaining impasses.”  

In an op-ed for the Globe and Mail, Hassan Yussuff noted that 94 percent of collective agreements that fall within federal jurisdiction end 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 just weeks after the Canadian Supreme Court reaffirmed citizens’ rights to collectively bargain.  The landmark case centered around the Mounted Police Associations of Ontario, which won the fight against the Public Service Labour Relations Act that previously barred the “mounties” from fully unionizing.  James Clancy, National Union of Public and General Employees (NUPGE) National President, said of that decision:

“This is definitely a historic moment for working people and the labour movement in Canada. Not only has the Supreme Court affirmed the fundamental labour rights of working people, it has reinforced the positive roles that unions and collective bargaining play in Canadian society.  The Court explicitly states that collective bargaining is a fundamental aspect of Canadian society in that it enhances the human dignity, liberty, and autonomy of workers.

Canada is truly firming up their judicial outlook on workers rights, with court Justice Abella writing that, “clearly the arc bends increasingly towards workplace justice.”


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