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In a momentous decision, released on 30 January 2015, the Supreme Court of Canada ruled in Saskatchewan Federation of Labour v Saskatchewan (SFL) that the right to strike is protected by the Canadian Charter of Rights and Freedom's guarantee of freedom of association. Writing for the majority (5:2), Justice Abella asserted: The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada's international obligations … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction. The case is significant not only for the Court's conclusion that the freedom of association protected in section 2(d) of the Canadian Charter includes the right to strike, but also because it signalled that the gradual expansion of the scope of constitutional protection for labour rights that began in 2001 with Dunmore, had not been reversed in 2011 in Fraser. In fact, Justice Abella began her judgment in SFL by remarking that ‘clearly the arc bends increasingly towards workplace justice’. The crucial issue before the Court was the constitutionality of provincial legislation that unilaterally designated public sector workers as essential and prohibited them from striking.... --Introduction (footnotes omitted)
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This paper looks at the “deep roots” of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms — to associate, to bargain collectively, and to strike — the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of their review of those regimes, the authors argue that long before the modern scheme, workers enjoyed a virtually unlimited freedom to strike for collective bargaining purposes. Although government-imposed restrictions on the freedom have increased significantly, especially under industrial pluralism, legislatures have typically provided workers with compensating trade-offs, including rights enforceable against their employers. However, in contrast to the historical pattern, public-sector workers have with growing frequency been subjected to “exceptionalism,” i.e. the suspension or limitation of freedoms without a grant of compensatory rights. In the authors’ view, it is the imposition of such measures that will likely provide the context for consideration of whether the Canadian Charter of Rights and Freedoms protects the right to strike.
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Using gender as its analytic lens, this article examines segmentation in the Canadian labour market by focusing on the standard employment relationship. It illustrates how standard employment was crafted upon a specific gender division of paid and unpaid labour, the male breadwinner norm, and was only available to a narrow segment of workers. To this end, it traces how from the lOSO's the standard employment relationship was supplemented by a growth in jobs associated with, and filled primarily by, women workers and it shows how women's increasing labour market participation in the late 1960s and early 1970s shaped demands for equality in employment policies. Since the 1980s, a deterioration in the standard employment relationship has undermined both demands for and the basis of gender equality strategies and the article concludes by raising the question of the normative basis for regulating employment in order to move towards strategies for reregulation.