Limiting public workers’ right to strike unconstitutional: Sask. court

Judge says law doesn’t give employees adequate dispute resolution process
|labour-reporter.com|Last Updated: 02/07/2012

A Saskatchewan law limiting the right of public workers to strike has been deemed unconstitutional by a Saskatchewan Court of Queen's Bench justice.

The Public Service Essential Services Act — also known as Bill 5 — infringes on workers' rights and is of "no force or effect," said Justice Dennis Ball.

The law sets out a process where some workers — such as snow plow drivers and nurses— can be declared essential and barred from going on strike.

The Saskatchewan Federation of Labour launched the constitutional challenge against the Public Service Essential Services Act and the Trade Union Amendment Act, two pieces of legislation passed shortly after the Saskatchewan Party came to power in 2007.

"Obviously, we need to go through it several more times, but I can say to you we are pleased by the court's decision to protect working people's Charter rights," Saskatchewan Federation of Labour president Larry Hubich told reporters after the decision was released.

In the ruling, Ball said the problem with Saskatchewan's law is that it doesn't give employees an adequate dispute resolution process where they can challenge which employees are designated as essential.

"Although the benefits that accrue from the statutory limitations on the rights to bargain collectively and to strike are significant, they are clearly outweighed by their deleterious effects on the employees affected," Ball said in the decision.

Ball also reviewed Bill 6, amendments to the Trade Union Act, which ended the practice of automatic union certification when a majority of employees sign union cards. Currently, a secret ballot vote is required to unionize a workplace. However, Ball rejected arguments that the Trade Union Act amendments were unconstitutional.

This is believed to be the first time in Canada an essential services law has been taken to court on a Charter challenge. Other provinces have essential services legislation, but Saskatchewan's is unique, according to Ball.

"No other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly, as the PSES Act," he said.

Saskatchewan Justice Minister Don Morgan said he will review essential services laws in other provinces to determine what changes can be made.

Ball will meet with both sides to talk about next steps.

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