The Common Front of some 420,000 state employees in health, social services and education began its first day of strike on Tuesday of the three announced. If this continues, could it be crushed by a special law forcing union members to return to work? This weapon is in the hands of François Legault’s government, but it is more difficult to wield successfully than before, says a labor law expert.
Two judgments from the Supreme Court of Canada — one rendered in 2007 and the second in 2015 — have framed and restricted the valid recourse to such a law, explains Michel Coutu, professor emeritus of labor law at the School of Industrial Relations of the ‘Montreal university.
That of 2015 is particularly important: the highest court in the country ruled that the right to strike is closely linked to freedom of association, which is protected by the Canadian Charter of Rights and Freedoms. Since then, the right to strike has benefited from constitutional protection, as an essential component of a genuine collective bargaining process.
These special laws, which end strikes — often by imposing heavy fines on workers for non-compliance — are mostly seen in conflicts where the state is also the employer. There have been dozens of them in the country, recalls Professor Coutu, and the State could previously adopt them without fear of challenges in court.
But the situation has changed: “This very powerful weapon, at the disposal of governments, began to crumble in 2007, and even more so in 2015.”
If a return to work law is challenged before the Court, the judge will first have to assess whether there has been “a substantial hindrance” to freedom of association, explains the professor. If the answer is “yes”, it will be necessary to assess whether this attack is justified “in a free and democratic society”, that is to say by proving that the objective pursued by the government constitutes an “urgent and real concern”. »
A valid goal could be to ensure that sick citizens receive necessary care. But here, it should be noted that the right to strike of nurses, for example, is already limited by their obligation to provide a minimum threshold of care: they thus offer what are called “essential services. »
Appetite for a special law?
Since the CAQ came to power in 2018, there has been no special back-to-work law.
Will the scale of the current labor conflict give François Legault’s government an appetite? Nothing indicates this at the moment. Last July, the Minister of Labor, Jean Boulet, said no to the mayor of Quebec who was calling for a special law to end the bus drivers’ strike. We must respect the right to strike, which is a “fundamental” right, the minister argued at the time.
Two recent examples, however dating from the previous government, show the fragility of these laws when examined by the courts.
In 2017, the government of Philippe Couillard adopted two special laws: the first to end a major strike in the construction industry and the other with the aim of suppressing state lawyers, also on strike .
In both cases, they were invalidated by the courts, which deemed them unconstitutional, recalls Professor Coutu.
Last year, the Superior Court rejected the Couillard government’s argument that it wanted to prevent the economic, human and social consequences resulting from the construction workers’ strike. By imposing a return to work sites just a few days after the start of the walkout, the State had “totally” prohibited the legal right to strike, the Superior Court wrote at the time. The attack on workers’ freedom of association was disproportionate to the benefits sought by the special law, continued the Court.
These two judgments, however, suggest that a return to work law could be declared valid by the courts, if it provides a reasonable alternative to the exercise of the right to strike, such as a true, neutral and impartial arbitration process to determine working conditions, says Mr. Coutu. But traditionally, the Quebec state has not wanted to leave such a large chunk of its budget in the hands of an arbiter. And it is “unlikely” for the future, judges the professor.