What Have You Done for Me Lately? Back-to-Work Legislation and the Constitutional Right to Strike

What Have You Done for Me Lately?Back-to-Work Legislation and the Constitutional Right to Strike Alison Braley-Rattai (bio) I have taught a course on the Canadian Charter of Rights and Freedoms, in one shape or form, since 2014. What I find most striking (if you'll excuse the pun) is how much faith students put into that document. Indeed, I once had a student argue in a ten-page essay that the Charter had made civil disobedience obsolete. Apparently, there were no legitimate moral claims that the Charter could not vindicate. That's some powerful document! In 2018, I taught, for the first time, a course specifically about the constitutionalization of labour rights, that is, the use of the courts by organized labour to advance claims that specific laws – normally those that impinge upon collective bargaining or striking – violate the Charter, particularly its guarantee of freedom of association. While the use of the courts by labour is not a new phenomenon, the Charter "added an important and rapidly growing new dimension" to the study of unions and the law.1 In this course, I assigned excerpts from important case law as well as academic commentary about those cases. While we tried to make sense of what the judiciary had decided in any given case, and what the implications of that decision might be, there was a touchstone question underpinning the entire course: Had the use of a judicial strategy to advance labour rights under the Charter been successful? Readers of this journal are likely familiar with the long-standing question among labour academics, and, indeed, some legal practitioners, as to the advisability of adopting a judicial strategy to advance labour rights. In the Charter's early years those skeptical of such a strategy – appropriately termed "Charter skeptics" – argued that the judiciary had historically been unsympathetic, if not downright hostile, to the concerns of workers and could not be expected, suddenly, to mend its ways. The first "labour cases" heard by the Supreme Court of Canada (scc) in the Charter era appeared to vindicate their position. The scc concluded in a trio of cases known collectively as the "labour trilogy" that the Charter protected neither the right to collectively bargain nor the right to strike.2 In an oft-cited article from 1988 commenting upon the labour trilogy, Harry Arthurs, probably the most prolific of the Charter skeptics, [End Page 148] offered that Charter litigation was "not a game for serious people" because "serious people like a little suspense in their games." By contrast, the outcome for labour of any Charter litigation was "drearily predictable."3 But that was then, and this is now. Since that time, the scc has done an about-face, recognizing a constitutional right to collectively bargain (in a 2007 case known as Health Services) and, in a 2015 case called Saskatchewan Federation of Labour v Saskatchewan (sfl), a right to strike!4 In so doing, the scc overturned its labour trilogy precedent. Arthurs took the opportunity to admit that he had been mistaken – well, sort of. Acknowledging that the court had done something he had not thought at all likely – that is, recognized the "collective" dimension of freedom of association – he wrote, "The idealists were right, I must now concede, and we skeptics were wrong."5 However, he also noted that the fact of nearly 30 years of labour litigation under the Charter had done virtually nothing for the labouring class as a whole; rather, "the position of workers and unions has worsened considerably."6 Union victories in court do not lead to major legislative improvements for workers, or to a more democratic economy, as Larry Savage and Charles W. Smith note.7 By contrast, these decisions tend to be defensive in nature, doing little more than establishing a minimal constitutional bar below which legislatures may not go, as legislatures prove increasingly interested in clawing back previously extended statutory protections.8 Well … that was then, and this is now. In other words, it is possible that even when labour wins, it doesn't. This irony was articulated in an article that appeared in this journal on the heels of the momentous 2007 decision...

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