2010 CanLII 5199 (SK LRB)
Saskatchewan Labour Relations Board — Saskatchewan
stoppage to maintain essential services — employees — strike — round of collective bargaining — work stoppage to maintain essential
In 2008, the Saskatchewan Government enacted the Public Service Essential Services Act, which requires “essential services” be a matter for collective bargaining by the parties. In the event that an essential services agreement cannot be achieved, the employer in effect decides the number of employees who are essential, together with the level of service to be provided and the means of providing that service. The Act allows employers to increase essential service designations during a strike, thereby having the unfettered ability to determine how effective a strike will be at any stage of the job action. In this case, a health sector employer served notices under the Act advising the union that it designated approximately 87% of the bargaining unit as essential. The union argued that based on the number of designations, the Act had taken away the union’s right to strike. Relying on international law and the Charter, the Union argued that the definition of “essential services” in the Act was too broad and, thus, constituted substantial interference in the union’s freedom of association and/or its right to strike. The Board held that it did not have requisite jurisdiction to subject the Act to Charter scrutiny. Nevertheless, the Board proceeded to analyze the Charter issues in a limited manner in the event it was in error respecting its jurisidiction. The Board dismissed the union’s arguments and, in particular, found that no court in Canada has yet recognized Charter protection for the right to strike and, in this Board’s opinion, B.C. Health Services, does not assist the union.