It’s been less than a month and already the Supreme Court of Canada (SCC) has made another big splash in the news. In a majority 5-2 ruling, they’ve ruled that Saskatchewan’s essential services law is unconstitutional because it violates the right to freedom of association. In essence, they’ve started another power struggle between essential service workers and provincial governments.
To put it bluntly, by allowing essential services to strike, they can effectively halt services such as health care, electricity, water supply, police, armed forces, firefighting, etc. Now granted, all of those services aren’t going to strike all at once, but each of them are necessary enough that it would cause a major problem if just one of those groups went on strike. In other words, they would have the ability to put a chokehold on government should they ever want to make demands.
Contrarily, if the SCC didn’t make that ruling, it puts all of the power into the hands of the government, leaving essential service workers without recourse or protection. The question here is who would abuse the system more?
Let me just say this: the SCC made the right call. The federal and provincial governments have the most collective power outside of the judiciary system. That automatically puts any employee or worker in a weaker position. Added to that the provincial governments are technically the employers of essential service workers (in many, but not all, cases) and you already have a grossly unequal balance of power. The right to association and the right to strike are granted to every other union worker, so why should it be denied to essential service workers?
The controversy happens when one considers that granting them that power shifts the balance far too much into the workers’ favour. Should they decide to abuse the system and strike for unreasonable demands (e.g., above average wages or benefits, unrealistic expectations, etc.), they could hold society hostage to achieve their goals. This was pointed out by the two dissenting judges, who said that the decision limits the government’s flexibility in labour relations. Marni Soupcoff, executive director of the Canadian Constitution Foundation, said the ruling “will interfere with the government’s ability to maintain essential services in a way that uses taxpayers money reasonably.”
However, that doesn’t mean there isn’t a way to achieve some middle ground. For starters, the current system of having an arbiter evaluate conditions, proposals and demands by workers before they’re allowed to go on strike should continue. Prior to that even being an option, the arbitration process would be the first line of consultation to resolve conflicts before they even get to that level. The decision of an independent arbiter should be binding since it would be impartial and not reflective of the government.
Beyond that, should the situation still demand a strike, there should be provisions put in place for anything deemed essential, such as health care, police, electricity, etc. They can use methods such as scaling back or employing strikebreakers. My point is, there are always ways of limiting that power so that the imbalance isn’t too great.
To give some background, this struggle in Saskatchewan began in 1999 when thousands of nurses went on strike and then again with highway workers and correctional officers in 2006 and 2007. That labour unrest was what led to Saskatchewan’s initial labour law and the current SCC decision.
Obviously, the Saskatchewan government isn’t happy with the current situation, but that’s just tough luck. It’s a lose-lose situation no matter how you look at it, so the best we can do is determine how best to mitigate the negative circumstances. That means granting workers their rights while creating a framework to limit that power.
