Labour Studies Index

Sakatchewan Federation of Labor and Strikes in the Public Sector: Confusing Social Rights with Fundamental Ones

Document type Article
Author Heeman, Roy L.
Journal Canadian Labour and Employment Law Journal
Volume 19
Date 2015-2016
Pages 399-412

Abstract

It appears to me that there is an obligation on any court studying the constitutionality of a provision of law, first, to give a detailed examination of the specific provision of law it is studying, as well as the whole context of the right, before pronouncing on its consti- tutionality. It is the failure of the Supreme Court of Canada majority in Saskatchewan Federation of Labour1 to do so that has given rise to much commentary, with one prominent newspaper questioning the "shoddy reasoning," the "curiously selective research" and the "slapdash approach to precedent."'2 Indeed, it is this failure that gives rise to the question of what the decision actually decides.' The majority judgment can best be understood in light of its misplaced emulation of European law, which is quite different from ours, and its frequent references to the Committee on Freedom of Association of the ILO. Although the Committee is not a judicial body, the majority judgment elevates it to one, though making the interesting proviso that the Committee's decisions are "not strictly binding."'4 The problems with showing such deference to the Committee on Freedom of Association are well known, and I will touch on them only briefly. One has only to read the papers by Brian Langille as well as Sonia Regenbogen, both of whom have gone to great lengths to study the committees of the ILO, to be disabused of the notion that these "committees" are judicial bodies or that their decisions are in any way binding on our courts.5 Indeed, in the Fraser case, I was amazed when, approximately two months after the matter was en delibdri, the Supreme Court received a missive from one of the ILO committees telling the Court its views on how the decision should be rendered.6 I strenuously objected to this document on two grounds: (1) how did the ILO committee know, in a secret delibdri, that one side needed its help? and, (2) by what right was a non-party to the Supreme Court proceedings lobbying the Court after the hear- ing, an action which the Court would properly have forbidden a party from taking? What may be less well known and understood are the basic dif- ferences between European labour law and our own.' The European law is based on a system of "voluntarism," whereby employees are free to join or not to join a union. An article quoted by the Court in B.C. Health makes this clear (though the Court's reliance on the article is unfortunate, given that the article's authors are referring to Convention 98 of the ILO, which Canada has not even ratified):' In view of the fact that the voluntary nature of collective bargaining is a funda- mental aspect of the principles of freedom of association, collective bargaining