Tuesday, March 30, 2021

Does SFL limit the state's ability to order workers back to work?

The fall 2020 issue of Labour/Le Travail had an interesting essay entitled “Free to strike? What freedom to strike? Back-to-work legislation and the freedom to strike in historical and legal perspective.” This essay by Eric Tucker was one of four in the volume that examines back-to-work legislation.

I’ve never regretted the time I’ve spent reading a piece by Tucker and this was no exception. The essay starts out examining the three strands of the framework that regulate workers’ freedom to strike. These strands include:
  • The liberal order’s foundational commitment to individualism which does not recognize the validity of collective activity (unless the wealthy do it in the form of a corporation). Collective actions, such as strikes, were (usually) suppressed by the state, although this repression was inconsistent and, eventually, a right to strike was recognized.
  • The post-war Wagner Act Model (WAM) narrowed the opportunity for workers to engage in legal strikes a spart of a broader strategy of minimally accommodating workers’ demands while containing the power of putting down one’s tools. 
  • Essential services restrictions were a late addition as the state extended WAM to public services, with strikes either being limited or replaced with binding arbitration. 
Beginning the mid-1970s, governments began actively intervening in labour disputes through back-to-work (BTW) legislation. The majority of Tucker’s piece examines how the constitutionalizing of the right to strike in the Saskatchewan Federation of Labour case in 2015 may affect the state’s ability to legislate workers back to work.

The upshot of Tucker’s analysis (which is really worth a read) is that BTW legislation is probably a Charter violation but may be saved under Section 1 so long as the BTW legislation minimally impairs the affected right. This, argues Tucker, will likely require an alternative dispute resolution process. In effect, carefully written BTW legislation, absent the punitive measures found in Harper-era laws, will likely be found constitutional.

This analysis suggests that a constitutional right to strike has limited practical utility because it is enmeshed in a legal regime that profoundly constrains the right to strike and gives government the ability to end strikes so long as they provide a reasonable alternative way to settle the dispute. A question this raises is how long will workers continue to participate in such a system?

-- Bob Barnetson

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