Alberta’s decision to limit striking by public employees – a critique of Bill 45

The government recently passed Bill 45, which in effect limits the ability of Public Sector Employees to strike.  The bill states…

  1. No employee and no trade union or officer or representative of a trade union shall cause or consent to a strike.
  2. No employee and no officer or representative of a trade union shall engage in or continue to engage in any conduct that
    constitutes a strike threat or a strike.
  3. No trade union shall engage in or continue to engage in any conduct that constitutes a strike threat.

You can read the full bill here.

This struck me as odd.  I would have thought that, as a Canadian, the right to strike would be part and parcel of the full rights granted to citizens of this country.  Now, I know that sometimes, with our over-consumption of US television, I get my Canadian and American rights mixed up, and since I don’t want to base my education on a show like Law and Order, I did my own investigation.

I started first by looking up the Canadian Charter of Rights and Freedoms, and was startled to see that the right to strike was not a fundamental right.  I know that charters and constitutions are written vaguely so as to apply as broadly as possible to the many nuances and complexities that arise in life, so perhaps it is not as surprising as I thought.

Canadian law is based on British law, which is a common-law type system, meaning that the law is developed through decisions of courts and tribunals, but include statues enacted by legislative bodies*.  With this in mind, I performed a quick search of the Canadian Supreme court archives to determine whether this Bill was in violation of the Charter and the Constitution.

I only read a couple of judgements but I picked one that, coincidentally enough, was brought forward by the AUPE against the Attorney General of Alberta in 1987.  This also was regarding the right to strike.  The court ruled that the right to strike is not a fundamental right and is not supported by the Charter of Rights and Freedoms.**

4 justices ruled against the AUPE, and 2 dissented.  Justices Beetz, Le Dain and La Forest claimed that the charter does not guarantee the right to strike, and while it does guarantee the right to association, this right cannot be extrapolated to include the right to strike.  I felt their argument pretty weak.

McIntyre had a better argument, I felt.  He stated that the Freedom of association under the Charter means the freedom to engage collectively in those activities which are constitutionally protected for each individual.** He goes on to say that charter allows for the freedom to associate in certain activities that are also protected for individuals acting alone.  The charter does not confer greater rights to groups than it does to individuals.  So, if the right to strike is not granted to an individual, it can be granted to a group either.

Dickson and Wilson dissented.  They argue, that throughout history, the role of association has always been vital as a means of protecting the essential needs and interests of working people and workers have associated to overcome their vulnerability as individuals to the strength of their employers** 

Furthermore, they add that the prohibition of the right to strike of all hospital workers and public service employees was too drastic a measure for achieving the object of protecting essential services. Indeed, without some evidentiary basis, it was neither obvious nor self‑evident that all those employees performed services “whose interruption would endanger the life, personal safety or health of the whole or part of the population”.**

In case you couldn’t tell, I agree with Justices Dickson and Wilson.

The Supreme Court has argued that the right to strike is not a fundamental right.  I can accept this. What I can’t accept though is the blatant conflict of interest that the Government of Alberta (GoA) is working under.  The GoA is both an employer and a legislative authority in this case.  The government should not be making laws that are grant it power as an employer.  If the right to strike is not a fundamental right as the GoA argues, then the government should back legislation that prohibits the right to strike for all employees in the province.  That will never happen, because it would be political suicide.  So, the government limits the rights of its employees, those it has power over, and wins the approval of the electorate so it can claim it is saving money.

But, it is not an impossibility that some large corporation will, in the near future, seek help from the government to limit strikes of its employees (happened with Air Canada), and it can be an easy extension to suggest that we are all essential workers.

Down with BIll 45.