MLT Alert! Saskatchewan's Essential Services Legislation Found Unconstitutional and Trade Union Act Amendments Upheld

The legislation limiting the ability of public sector workers to go on strike was ruled unconstitutional by the Court of Queen’s Bench for Saskatchewan on February 6, 2012. The Court concluded that The Public Service Essential Services Act (“PSESA”), which was introduced in 2007, infringed on the freedom of association of employees protected by section 2(d) of the Canadian Charter of Rights and Freedoms. Although the Court recognized the importance of the continued delivery of essential services during a labour dispute, and found the legislation met this objective, it went on to hold that the legislation did not impair the right to strike as little as possible, and that the provisions of the legislation went beyond what was reasonably necessary to achieve its important objective. As a result of the constitutional infringement the legislation was declared to be of no force and effect, but the declaration of invalidity was suspended for a twelve month period.

In the same decision, the Court upheld the constitutionality of a number of amendments to The Trade Union Act, which were also introduced in 2007. The impugned amendments raised the threshold percentage of workers to trigger a certification vote from 25 per cent to 45 per cent, implemented mandatory secret ballot votes prior to certification, and broadened permitted employer communications to employees. Rejecting the argument that The Trade Union Act amendments were unconstitutional, the Court held that the modifications, although not necessarily facilitating easy certification of trade unions, did not interfere with the rights of employees to organize, to bargain collectively or to strike and were therefore not in violation of the Charter.

To date no amendments to the PSESA have been tabled by the Government of Saskatchewan, nor has the ruling been appealed. This decision is a first in Canada, in that it is the first time a court has granted Charter protection to the right to strike.

Click here to access an online copy of the decision, Saskatchewan Federation of Labour v. Saskatchewan, 2012 SKQB 62.

This Alert! is intended for general information only. Please feel free to contact us for additional information on this or any other issue:

  • Brian Kenny, Q.C. | Regina | (306) 347-8421 | bkenny@mlt.com
  • Kevin Wilson, Q.C. | Saskatoon | (306) 975-7103 | kwilson@mlt.com