"Beware the organization that sings; it is invincible" - IWW

Saskatchewan Federation of Labour v Saskatchewan Government

A Win for Canadian Labour

George Hewison                          Political Economy Newsletter         Volume 3, Number 2 February 2015

Canadian organized labour let out a collective sigh of relief combined with jubilation when the Supreme Court of Canada rendered its decision in Saskatchewan Federation of Labour v. Saskatchewan on January 30, 2015.

It was relief that with a swing of but two Supreme Court Justices, the fate of labour relations could just as easily have gone from collective bargaining to collective begging.

There was jubilation in that the “right to strike” was finally given constitutional status.

Congratulations must go to the labour movement’s legal gladiators for handing the Supreme Court Justices a compelling thesis on why the right to strike was central to an effective collective bargaining regime.

Few in the labour movement could have equaled Justice Rosalie Abella’s (writing for the majority) brief, but accurate, history of organized labour’s trajectory over more than a century and the effect of developing international law “that the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining”.

Why then, my own conflicted reaction? It was so obviously much better news for organized labour than if the 5-2 decision had gone the other way and against the interests of organized labour.

Perhaps it was my own experience nearly half a century ago when I was taken in handcuffs to jail during a strike that appeared to be life and death for our union on the Prince Rupert waterfront. We were fighting for first contracts, and a judge had issued an ex parte injunction that tipped the balance of power so far away from the trawl and halibut fishers that even today, a new generation still does not have minimum price guarantees for their catches.

At the time, courts were jealous of their powers that increasingly were being stripped away from them to specialized labour relations tribunals mandated by the Wagnerian doctrine^[1] and increasingly embodied in the Rand Formula template in Canada. Courts, up to that point, had been used to dealing with labour disputes under the common law, i.e. “restraint of trade”, “watching and besetting” and “criminal conspiracy”. Granting ex parte injunctions^[2] that could cripple unions and their ability to balance the inequality between labour and capital was widespread. The prejudice against labour and for the “free market” was so deeply ingrained in the court system that there was the story of the judge who fell asleep at the baseball game, and when the umpire called strike, the judge immediately awoke and snorted “Injunction granted!”

While the charges against me and six other members of the union were eventually stayed, two officers did a year in jail and the court seized our union’s treasury and we had to rely on the generosity of our membership to carry on.

No, that is not the source of my disquiet, because ironically, in the Saskatchewan case, it was the two dissenting Justices, Rothstein and Wagner, who railed against the majority for intervening in a labour relations case saying the Court was overstepping its bounds by getting involved establishing a labour relations regime best left to legislatures. How far the legal system has travelled in fifty years!

So, why do I have this unease in the pit of my stomach?

Up until Saskatchewan, there had been a major trilogy of cases on labour law in Canada that has been leading to this moment. The recent decision on the “right to association” for the RCMP was a further step in granting a “generous” interpretation to the provisions of Canada’s Charter of Rights and Freedoms. But, this decision goes that one step further to, as the minority Justices said, “constitutionalize” the right to strike, the only ultimate weapon in the workers’ collective arsenal.

It is worth noting that it has been less than thirty years since the Alberta reference^[3] which was part of the labour relations trilogy. Supreme Court Chief Justice Dickson at that time had argued unsuccessfully for something approaching the January 30 decision “that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.  In this case, the suppression of the right to strike amounts to a substantial interference with the right to a meaningful process of collective bargaining.”

In this Saskatchewan case, Rothstein and Wagner (now the minority) assailed the majority for their decision, arguing that they, the majority, have stood the whole regime of common law and stare decisis^[4] on its head. Is the court so fickle as to change its mind? And once having changed its mind, can it do so again with new faces?

There is no doubt that the decision is a victory for organized labour. The only question is how big a victory it is. That the Premier of Saskatchewan, Brad Wall, took a sledgehammer to public employees in drafting his legislation assisted the Court to come to the conclusion it did. By promulgating legislation that left the definition of “essential services” so wide the government could determine anyone from a liquor store employee in a Crown Corporation to a custodian in a high school was “essential” and bar them from using their only economic tool.

Like the election in Ontario where the anti-labour, “Right-to-Work” proponent, Tim Hudak, was resoundingly defeated, this decision reflects where the minds of the people of Canada and the labour movement are, at the present moment. Chief Justice Dickson didn’t reflect that mind set in 1987 and Rothstein and Wagner didn’t reflect it in 2015.

The conclusion I draw: the battle is far from won.

Stare decisis means that the constitutional protection of the right to strike will be harder to reverse and will no doubt be argued by organized labour many times in the coming months and years. It will be interesting to see how the Saskatchewan government, that has been given a year to replace its sledgehammer with something more in keeping with current Canadian reality, will react when it returns to the issue of essential services during strikes of government employees. It will also be interesting to see how other jurisdictions handle their own employees. It will be still even more interesting to see how the courts interpret federal government back-to-work legislation for postal workers, longshore, rail workers and others in light of Saskatchewan.

But like other parts of the Charter, there has been a steady chipping away at the fundamental rights of Canadians, enshrined in the Charter.^[5]

The legislation, like “right-to-work” and other measures proposed by the Fraser Institute are still on the front burner of political activism for powerful forces in society. They not only want to cripple organized labour to enhance the rights of capital, but also they want to ensure that labour does not become a leader of society for a new deal for all. It is noteworthy, in this regard, that the second piece of Brad Wall’s legislation (amendments to the Trade Union Act also dealt with by the Court that made it harder for unions to organize and easier for employers to interfere in organizing attempts) was given a unanimous pass by the Supreme Court in the same Saskatchewan decision.

The Saskatchewan Government and its cheering section have been blunted as the court chose to reinforce the collective bargaining regime of the Rand Formula. And therein lay the double-edged sword!

As we know, the Rand Formula did two things. It gave unions a modicum of security, a toehold after generations of struggle. But it also led to a certain passivity and a disconnect between rank and file members and leaders as the field of labour relations became regimented and more specialized. That is a clear and present danger. Saskatchewan is part of that rarified environment that affects every worker in Canada. Yet how many workers will read Saskatchewan? And how many of those will realize the significance for their daily lives?

That the fate of collective bargaining and the only weapon open to workers to collectively seek redress could hang on the swing of two Justices must be cause for serious reflection as to what happens next.

An informed and involved membership, combined with community activism is the best guarantee to the permanence of a basic right. Like democracy, the rights of labour must be struggled for again and again. As has often been said, the difference between a free person and a slave is the right to withhold labour. That is an inherent right that all of society must come to respect. Like democracy, it can’t be left to a handful.