No one in Quebec will dispute the words of Dr. Gilles Julien: education is essential to the development of children. As he emphasized in his open letter, this is a right crystallized in the Convention on the Rights of the Child. The fact remains that Dr. Julien’s proposal to add “school to the list of essential services” is a legal trap as well as an unnecessary distraction in the context of the current negotiations.
While it is obvious that Quebec children are affected by the strike taking place in our schools, it is not by putting the fundamental rights of teachers in competition with those of their students that we will ensure the best interests of the students. children in the medium and long term.
First, it is important to say a few words about the legal concept of “essential services”. In Quebec, as elsewhere in Canada, certain public services, such as establishments in the health and social services network, are subject to the obligation to maintain essential services in the event of a strike. The criterion for identifying these same essential services are those whose interruption could have the effect of endangering public health or safety.
Since all public services are intended to meet the needs of the population, it could be tempting to qualify all of these same services as essential. However, this approach does not stand up to legal analysis.
The maintenance of so-called “essential” services thus constitutes a restriction on the right to strike which may be justified in certain circumstances. By arguing that the absence of a designation of education as “essential services” in the legal sense would be “a catastrophe for children”, Dr. Julien implicitly suggests that it would be necessary to vigorously restrict – or even ban – female teachers and teachers the right to strike. However, such a restriction would unduly limit freedom of association, a fundamental right protected by charters.
Indeed, in two judgments rendered in 2015, the Supreme Court recognized that the strike constituted a constitutionally protected collective activity, insisting on the fact that this means of pressure constitutes an essential and indispensable instrument in the service of collective bargaining and that its exercise tends to rebalance the balance of power at the heart of collective work relationships. This position of the Court is based in particular on Canada’s international commitments (made with the prior agreement of Quebec) under Conventions No. 87 and No. 98 of the International Labor Organization (ILO), including the positions in subject (“strike can only be prohibited in services essential to life, health and safety”) are authoritative on a universal scale.
Since then, considering the constitutional obligation of Canadian governments and legislators to protect the ability of workers to maintain a balanced relationship of power with their employer in the context of collective negotiation of their working conditions, labor law must adjust the maintaining essential services while ensuring the right to strike for public service employees. The applicable test to justify a restriction on the right to strike requires that it be minimal. The applicable law does not seem to us to be able to support Dr Julien’s, undoubtedly well-intentioned, proposal.
But beyond legal considerations, the argument of protecting the interests of Quebec children does not seem to militate in favor of restricting teachers’ right to strike, quite the contrary. If, as Dr Julien points out, the Convention on the Rights of the Child postulates that access to education is a powerful vector in the fight against inequalities, we must also remember that teachers are the artisans of the public education system and, as such, their working conditions are inextricably linked to the latter’s capacity to meet its various missions. The deterioration of conditions of practice in the public education system is at the heart of the current negotiation process.
In the context of a historic labor conflict, the proposal to broaden the notion of “essential services” while affirming the justified nature of the current strike blows hot and cold and it is clear that in the long term, no one will not benefit from confusion leading to dangerous competition between the rights of each party. Especially not children.
*Also signed this letter: Stephanie Bernstein, professor, Department of Legal Sciences, UQAM; Julie Bourgault, professor, Department of Law, UQO; Michel Coutu, professor emeritus, School of Industrial Relations, University of Montreal; Renée-Claude Drouin, professor, Faculty of Law, University of Montreal; Mélanie Dufour Poirier, professor, School of Industrial Relations, University of Montreal; Patrice Jalette, professor, School of Industrial Relations, University of Montreal; Isabelle Martin, professor, School of Industrial Relations, University of Montreal; Gregor Murray, professor, School of Industrial Relations, University of Montreal; Sébastien Parent, professor, Department of Industrial Relations, Université Laval; Nicolas Roby, scientific coordinator, Interuniversity Research Center on Globalization and Work (CRIMT) University of Montreal; Charles Tremblay-Potvin, professor, Faculty of Law, Laval University; Gilles Trudeau, professor emeritus, Faculty of Law, University of Montreal; Guylaine Vallée, professor, School of Industrial Relations, University of Montreal.