Labour Relations Policy and Practice, and Regulation of the Right to Strike in the Broader Public Sector: The Implications of Saskatchewan Federation of Labor

This paper considers some of the implications of the Supreme Court of Canada's watershed judgment in Saskatchewan Federation of Labour, which recognized a constitutional right to strike under the Charter, for labour relations policy and practice in the broader public sector. The author notes that while the right to strike has been a key element of modern industrial relations policy, restrictions on that right have been deemed to be justified in respect of "essential " public services. Despite a marked decrease in strike activity in recent decades across all sectors of the economy, the author finds that strikes remain a significant feature of industrial relations in the broader public sector, particularly in the areas of health care, education and social services, where union density continues to be at high levels. In Saskatchewan Federation of Labour, the Supreme Court, though recognizing the fundamental importance of the right to strike to collective bargaining, did not preclude the possibility of restrictions on strikes in essential services if such restrictions were reasonably justified. In particular, the Court held, legislation that prohibited or limited strikes may survive Charter scrutiny if it provides for a "meaningful" alternative dispute resolution mechanism. The key question, then, is what sort of process will satisfy the requirements set out by the Court. In suggesting an answer to this question, the author reviews the study by Adell, Grant and Ponak on strikes in essential services, which concluded that the so-called "designation" model (which seeks to maintain the delivery of essential services during a strike or lockout) had more favourable industrial relations outcomes than either the "no-strike" model or the "unfettered strike" model. Nevertheless, the author points out, the practical implementation of the designation model could become more complex as a result of the decision in Saskatchewan Federation of Labour because of the larger number of issues to be decided and because of the requirement that the mechanism used to determine outcomes regarding essential services, classifications and employees be inclusive rather than unilateral.