Thursday, May 15, 2014

Supreme Court of Canada hearing tomorrow on whether right to strike has constitutional protection

NUPGE will appear as intevernor arguing that the right to strike as referred to in the Charter should be interpreted based on Canada's obligations under international labour law.

Ottawa (15 May 2014) — The Supreme Court of Canada will hear a historic case on May 16 on whether the right to strike is a constitutionally protected right under Canada's Charter of Rights and Freedoms.

Right-to-strike case from Saskatchewan reaches the Supreme Court

The case centres around a 2008 Saskatchewan law, the Public Service Essential Services Act (PSESA), which the government said was necessary to ensure essential services are maintained during a strike of public employees. However, PSESA's definition of essential services was so broad that practically any public service employee could be designated as an essential worker and therefore not eligible to exercise the right to strike. For all intent and purposes, the legislation took away the right to strike for almost all public service workers in the province of Saskatchewan because it made strikes in the public service workplaces totally ineffectual.

Numerous unions in the province, under the umbrella of the Saskatchewan Federation of Labour (SFL), initiated a court challenge, arguing the legislation violated members' freedom of association rights under Section 2 (d) of the Charter. The Saskatchewan Court of Queen's Bench agreed and struck down the law as unconstitutional in 2012. The Saskatchewan Court of Appeal reversed that decision in 2013.

NUPGE granted intervenor status; will focus on Canada's obligations under international law

In 2009 the National Union of Public and General Employees (NUPGE) submitted a complaint against the PSESA to the International Labour Organization (ILO), the Geneva-based UN body responsible for establishing and monitoring international labour standards. The ILO strongly condemned the legislation as violating ILO Convention No. 87 on Freedom of Association, which was ratified by Canada and all provincial and territorial governments in 1972.

NUPGE is one of 14 unions granted intervenor status on this case by the Supreme Court, the largest number of unions ever to appear on a case before the Supreme Court. NUPGE's intervention will focus on Canada's obligations under international law. 

"We are proud to be intervening on such an important case for labour rights," says James Clancy, NUPGE National President. "Our long and consistent efforts organizing against anti-labour legislation is a testament to our philosphy that labour rights are human rights. Canada's signature must mean something on international laws. Our governments have responsibilities that cannot be ignored and we look forward to putting our case forward tomorrow with the other intervening unions."

Well-known and respected human rights lawyer Paul Champ, representing NUPGE, will point out the Canadian government's repeated claim that the adoption of Canada's Charter is one of the means by which the government has implemented international human rights treaties into domestic law. He will argue thatmany of the provisions in the Charter were modelled on international instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the ILO's Convention No. 87 on Freedom of Association. All these international instruments recognize the right too strike as a fundamental human right and Canada is a signatory to each of them.

This hearing is the third major labour rights case the Supreme Court of Canada will have heard this year. In February it heard a case on whether the right to join a union is constitutionally protected and a case on whether workers in Canada have the right to collective bargaining without substantial interference from government legislative actions. All three rulings are expected in 2015 and will likely determine the degree of constitutional protection Canada's Charter provides to a wide range of labour rights.


The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE