#WorkLawWednesday: Can the Government Order Workers Back-To-Work During a Strike?

Until recently, the simple answer was yes. Canadian legislatures could pass back-to-work legislation that would order workers to return to work, restore the expired collective agreement, ban strikes, and fine individuals who failed to return to work. And they did: the federal government has passed more than 30 back-to-work statutes to end strikes in the public sector since the 1950s. And since the 1980s federal and provincial governments have passed these laws more and more frequently.

This legislation eroded bargaining rights by imposing  settlements on workers that would never have been approved had the collective bargaining process – sans intervention from government – been respected.

However, in finally recognizing the right to strike as a component of the freedom of association, the Supreme Court of Canada in the seminal case Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (“SFL”) may have laid the groundwork for the demise of back-to-work legislation, or at least the demise of outright strike bans usually contained in these special statutes.

In SFL, the Supreme Court of Canada determined that the right to strike is an “indispensable component” of the constitutional right to meaningful collective bargaining.  Legislation that banned strikes without providing a fair way to conclude a collective agreement interferes with that constitutional right.

The April 2016 decision of Justice Firestone In Canadian Union of Postal Workers v Her Majesty in Right of Canada, 2016 ONSC 418 confirmed that back-to-work legislation imposing a ban on strikes is unconstitutional. To date, this is the first and only decision on the issue since the advent of SFL in 2015.

In broad strokes, Justice Firestone determined that legislation ordering postal workers back-to-work was unconstitutional as it substantially interfered with the meaningful process of collective bargaining by removing the right to strike – an “indispensable component” of the right to meaningful collective bargaining, and imposing an arbitration process that favored the employer in its place.  The judge declared the legislation of no force or effect retroactively.

If it survives an appeal, this decision will severely circumscribe potential government interference in the collective bargaining process. 

For more information about labour law, please contact Dominic Caron.  

#WorkLawWednesday: every second Wednesday, PL answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.