Friday, July 12, 2013

Adams on The Right to Strike in Canada – Recent Developments

CanadianflagAt my request, Roy Adams (Ariel F. Sallows Chair of Human Rights (Emeritus), U. of Saskatchewan; Professor of Industrial Relations (Emeritus), McMaster University) has provided an update on the legal status of the right to strike in Canada.  This has been a hot area in Canadian labor law and a recent decision by the Saskatchewan Appellate Court has only added flames to that fire.  You can read Roy's entire commentary here.

Here is a taste of the piece:

After many years in power Saskatchewan’s moderately leftist New Democratic Party was defeated by the conservative “Saskatchewan Party” in 2007. The new government immediately introduced labor law changes one of which put considerable constraints on the right of public sector workers to strike.

Organized labor immediately went to court, claiming that the legislation offended the Freedom of Association clause in Canada’s Charter of Rights and Freedoms. At the first level (Court of the Queen’s Bench) the judge (Ball) agreed and ordered the government to revise the law (see Saskatchewan v. Saskatchewan Federation of Labour 2012 SKOB 62). Instead, the government appealed and, very recently, Ball’s ruling was reversed (see Saskatchewan v. Saskatchewan Federation of Labour 2013 SKCA 43).

Whereas most Canadian governments, even those controlled by conservative parties, are more cautious than governments in the USA about attacking organized labor, the urge to weaken unions and especially public sector unions – is on the rise. (Private sector unions are already weaker than they have been in decades).  But in the Canadian environment there is a counter force to be contended with – international labor law which has grown in importance over the past half-dozen years primarily as a result of the Supreme Court finding it to be a persuasive source in interpreting the Charter’s Freedom of Association Clause (see Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; aka BC Health Services).

Read the whole piece when you get the chance. It does a great job explicating the current status of the right to strike in Canada. I remarked to Roy that although Canadian labor proponents may feel that things have been rough for them in recent years, their American colleagues would feel lucky to even have freedom of association in the labor context or the freedom to strike given any form of constitutional consideration. Ditto any legal recognition by US Courts of (gasp!) international labor standards!


Commentary, International & Comparative L.E.L., Labor Law | Permalink

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Thanks for soliciting and posting this pithy and illuminating update. For my two cents, Roy makes an especially important point for us Americans when he observes that the fundamental freedoms embodied in international norms are ill-suited to promoting labor organizing under the Wagner Act model, with its government-conferred exclusive representative status and government-determined bargaining units. We got a taste of that problem when employers effectively used the language of freedom and democracy to defeat EFCA. Maybe it’s time, as Roy suggests, for unions and their supporters to consider giving up the crutch of government-conferred exclusive bargaining status, and to seek another solution to the free rider problem. As scholars like Kathy Stone have argued, fixed bargaining units are out of place in our increasingly “flexible” international economy. And, as Roy has shown elsewhere, efforts to tinker with the Wagner Act are unlikely to reverse labor’s fortunes, as demonstrated by the declining fortunes of unions even in Canadian jurisdictions that already have stronger protections than those in EFCA. On the international scene, workers have fared far worse under the Wagner Act model than under other regimes. Abandoning it would open the possibility of returning to fundamentals. “Freedom of association” was the labor movement’s slogan during the twentieth century, when all of our major workers’ rights statutes were enacted, and it is now the principle embodied in international law. Maybe we should give up the empty slogan of “free choice” and return to the workers’ freedom of association.

Posted by: James Gray Pope | Jul 13, 2013 6:46:36 AM

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