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- Title
Canada's Statutory Strike Models and the New Constitutional Landscape.
- Authors
Braley-Rattai, Alison
- Abstract
In their seminal study of Canada's legislation regulating strike activity, Adell, Grant and Ponak argued that the various statutes could be categorized in accordance with several models: the "unfettered strike," the "no strike," and the "designated strike." To these models Adell later added a fourth -- which, tongue-in-cheek, he termed the "instant back-to-work" model -- to describe the frequent Canadian practice of ending otherwise lawful strike activity by enacting back-to-work legislation. In view of the Supreme Court of Canada's decision in Saskatchewan Federation of Labour (SFL), holding that the right to strike is protected by the Charter of Rights and Freedoms, it is unclear whether and to what extent those models (as embodied in legislation) will stand up to constitutional scrutiny. This article takes a closer look at the constitutionality of the various models of strike activity, particularly the ways in which Canadian courts are likely to diverge from the ILO standards that to a significant degree informed the Supreme Court's decision in SFL. An examination of how the models are typically applied, taking as its context the emerging principles on the right to strike, will clarify the legislative space in which governments can act to pass laws curtailing strike action. The author suggests that legislation which gives effect to the "instant back-to-work" model will be unlikely to pass constitutional muster. However, back-to-work legislation as such may well remain within the bounds of constitutionally permissible options, notably in those industries that could be classified as "non-essential yet important" and where an adequate dispute resolution mechanism has been substituted for the right to strike.
- Subjects
LABOR disputes; STRIKES &; lockouts; CANADA. Canadian Charter of Rights &; Freedoms; RIGHT to strike; EMPLOYEE rights
- Publication
Canadian Labour & Employment Law Journal, 2019, Vol 21, Issue 2, p461
- ISSN
1196-7889
- Publication type
Article