Behind the times: SCC affirmation of right to strike recognizes reality

Posted by on Feb 9, 2015 in Court Decisions, News, Union Rights

In the aftermath of Saskatchewan Federation of Labour v. Saskatchewan, some commentators suggested that, if the Court didn’t get it wrong, it at least didn’t get it right (here for example).

While this suggestion may be valid from a purely theoretical standpoint (the law has traditionally been anti-labour and has always sought to curtail striking), it misses the practical reality that, regardless of whether the ‘right to strike’ is part of section 2(d), workers will strike. Striking is virtually the only real weapon most workers have.

The alternative to striking is of course litigating in court. But because litigation is so expensive, and unions are not as well resourced as employers, they are at a great disadvantage before courts and tribunals.

This great disadvantage is only counterbalanced by the real possibility of economic sanction. Striking levels the playing field. Recognizing that, as did the SCC in SFL v. Saskatchewan, may not be in line with traditional, “black letter” labour law, but it unquestionably acknowledges the reality that striking is a fundamental part of labour relations, regardless of whether it is constitutionally protected.

From a practical standpoint, the right to strike was won decades ago. Workers realized that by collectively withholding their labour (and even physically occupying or blocking access to the workplace), they could achieve a level of collective power not attainable individually. They realized that their collective negotiating power was far greater than the sum of their power as individuals; and that only by leveraging that power could they hope to achieve fairness at the bargaining table. Even if employers refused to recognize a legal right to strike, they could not ignore the fact of striking, and workers’ assertion of that fact. In the practical sense, workers asserted their right to strike, and employers couldn’t but recognize it.

What is gained then from converting this practical right into a legal one? When the Supreme Court recognized the right to strike in SFL v. Saskatchewan, it curtailed the Canadian state’s ability to intervene and suppress striking activity. Which means that the state is now [somewhat] more limited in its ability to suppress — through police violence or toleration of employers’ thugs — striking workers on behalf of employers, as it did so frequently in the past (see Craig Heron’s The Canadian Labour Movement: a Short History). That limitation, however modest, is unquestionably a victory for workers.

So even if the Supreme Court’s recognition of a right to strike is nothing more than a recognition of a right that was won by workers decades ago, it is a very welcome recognition all the same.