The Right to Strike: The Charter and Challenges

Introduction

With the recent collective action from workers at Amazon, and more locally Stella’s, strikes have been a hot topic on the minds of many. Labour rights and human rights have historical parallels yet how do these apply directly to the right to strike? It is important to know that in Canada, the right to strike is protected by the Charter under the freedom of association – what is even more important to be familiar with is exactly how these protections work and what their limitations are. The write to strike is important due to nature of employer and employee relationships which contain an inherently unequal power dynamic.  This inequality is further exacerbated by attempting individual employees attempting negotiation on their own, through working as a group instead there is a collective effort in bargaining. Thus, unions are integral in balancing out this dynamic by presenting the employees as one cohesive entity and beginning a more balance conversation between these two parties.

Why is the right to strike so important? 

Strikes remain vital tools in the protection of workers’ rights to be utilized when necessary. Meaningful bargaining between parties requires the parties to be able to either accept or refuse an offer being made. The importance of strikes is described well in The Trilogy Strikes Back: Reconsidering Constitutional Protection for the Freedom to Strike by Steven Barrett & Benjamin Oliphant: 

“If the government deprives workers of their freedom to refuse an employer’s offer (i.e. to strike), there can be no collective bargaining. Whatever a right to collective bargaining entails, then, it by definition must include the possibility of (collectively) refusing the offer and seeking something more or different.”

What limits are there on unions regarding strikes?

The limits on the right to strike were not fully set into place until the Post War Compromise. This major shift in labour history occurred with the implementation of the Rand Formula, which was proposed as a solution through binding arbitration to balance the interest of employee and employer in the Windsor Ford Strike.

The Windsor Ford strike was one of the largest and most important postwar strikes in Canada. In addition to the public attention the strike drew, the resulting Rand Formula became a central facet of Canadian labour relations. The solutions offered by the Rand Formula provided a blueprint that has been used in numerous collective agreements in Canada and has been highly influential in shaping Canadian labour laws. (Windsor Strike,  Canadian Encyclopedia)

Whether the pros outweigh the cons of this scheme is a highly contested issue as employees now must discipline their own workers and certain types of striking outside of good faith bargaining is not allowed, including wildcat strikes. Deviating from this arrangement can have serious consequences and penalties for a union.  This shift from the power of unpredictability with strike action to predictability and security with employers and the government is an important feature of the Post War Compromise. 

“The Rand Formula is credited with taking “management-labour disputes out of the brick-and-tear-gas stage” and providing unions with a steady financial foundation. In the aftermath of the strike, Canadian unions became more hierarchical and bureaucratic and workers had less direct input on decision-making.” (Windsor Strike, Canadian Encyclopedia)

Through the Rand Formula, unions have achieved more legally recognizable power than before; however, they can only strike after collective agreement and in good faith. Overall, the value of guaranteed security of this arrangement juxtaposed with the new restrictions remains an ongoing reality of the labour landscape today.

How do human rights come in? How does the Charter apply?

The Charter recognizes the right to strike under Section 2(d), the right to freedom of association and that “the purpose of the protection of freedom of association is to protect collective action” (Lavigne v. Ontario Public Service Employees Union). As with the other rights protected under the Charter, the right to freedom of association is limited by of the Charter’s Section 1 which states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Freedom of association has been interpreted by Courts to mean that employees have the ability to pursue workplace goals and activities in substantive ways, such as through the practice of collective bargaining. This covers the ability to engage in discussions with and amongst themselves, present demands and negotiate with the employers. In order for collective bargaining to be meaningful, a party must be able to withdraw services. (Department of Justice, Section 2(d)- Freedom of Association). Within legal limits, collective bargaining cannot be considered meaningful without strike negotiations.  The Supreme Court of Canada, in its decision Sask Fed of Labour v SK, stated that employees having the opportunity to withdraw their services is an integral component of the freedom of association and that “this crucial role in collective bargaining is why the right to strike is constitutionally protected by s. 2(d).”

Is the right to strike always protected? What happens with Back to Work legislation?

In 2018, the Canada Post workers went on strike. In response to this, Back to Work legislation was utilized with the implementation of Bill C-89 to which the Canadian Union of Postal Workers filed a charter challenge to rule section 52 as a invalidity in the Ontario Superior Court. A previous similar use of Back to Work legislation was found as a violation of section 2 rights as shared in a piece by the Jurist, “In 2011 former Prime Minister Stephen Harper’s Conservative government legislated Canada Post employees back to work. That law was found unconstitutional in 2016 by the Ontario Superior Court of Justice”. Whether or not back to work measures are seen as appropriate or not depend upon the “circumstances in which these measures are used and the alternative provided”.

Conclusion

The right to strike is one protected under the Charter and is an integral aspect of collective bargaining. It is important to be aware of how this protection applies. Being informed and thinking critically about back to work legislation is important especially in circumstances where there is a possible constitutional issue. Knowing one’s rights is essential to self-advocacy and recognizing when they have been violated.

Faith Daza
Pro Bono Law StudentDisclaimer: This document does not contain legal advice. Pro Bono Students Canada (PBSC) is a student organization. This document was prepared with the assistance of PBSC law student volunteers. PBSC students are not lawyers and they are not authorized to provide legal advice. This document contains general discussion of certain legal and related issues only. If you require legal advice, please consult with a lawyer.