Freedom of Association and the Right
to Strike in Europe and Canada: The
Evolution of a Model
Larry Haiven
Saint Mary’s University, Halifax, Canada
[email protected]
Right to strike - Haiven
Page 2
Context
Right to strike - Haiven
Page 3
Canada got 60% richer (in real GDP per
capita) 1981-2006
And productivity increased prodigiously but
average weekly wages did not increase
Productivity
Earnings
http://www.policyalternatives.ca/sites/default/files/uploads/publications/
National_Office_Pubs/2007/Rising_Profit_Shares_Falling_Wage_Shares.pdf
Labour history is
not onward
and upward.
Right to strike - Haiven
Page 6
160,0
Index of real base wage 1981-2008
Canadian unionized workplaces over 500 workers
150,0
1981=100
140,0
130,0
120,0
Real Public sector increase
Real Private sector increase
110,0
Real Increase all workers
Real GDP per capita
100,0
90,0
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994
1993
1992
1991
1990
1989
1988
1987
1986
1985
1984
1983
1982
1981
Right to Strike in Canada &
Europe
Europe
European Convention on Human Rights
1.
Everyone has the right to freedom of
peaceful assembly and to freedom of
association with others, including
the right to form and to join trade
unions for the protection of his
interests.
2.
No restrictions shall be placed on the
exercise of these rights other than
such as are prescribed by law and are
necessary in a democratic society in
the interests of national security or
public safety, for the prevention of
disorder or crime, for the protection of
health or morals or for the protection of
the rights and freedoms of others. this
article shall not prevent the imposition
of lawful restrictions on the exercise of
these rights by members of the armed
forces, of the police or of the
administration of the State.
Right to strike - Haiven
Canada
Canadian Charter of Rights and
Freedoms
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and
freedoms set out in it subject only to
such reasonable limits prescribed by law
as can be demonstrably justified in a free
and democratic society.
2. Everyone has the following fundamental
freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion
and expression, including freedom
of the press and other media of
communication;
c) freedom of peaceful assembly; and
d) freedom of association
Page 8
Right to Strike in Canada &
Europe
Europe jurisprudence
Judgments of European Court of
Human Rights with regard to
Article 11 of the European
Convention on Human Rights
(ECHR) – within the Council of
Europe
• Demir and Baykara v Turkey,
Application No. 34503/97, 12
November 2008 (Grand
Chamber).
• Enerji Yapi-Yol Sen, Application
No. 68959/01, 21 April 2009
(Chamber judgment - now final
after request to be referred to the
Grand Chamber rejected).
Right to strike - Haiven
Canadian jurisprudence
Judgment of the Supreme Court of
Canada with regard to s.2(d) of the
Canadian Charter of Rights and
Freedoms
• Health Services and Support
Facilities Subsector Bargaining
Assn v British Columbia [2007] 2
SCR 391; 2007 SCC 27 (esp.
para. 77, per McLachlin CJ and
LeBel J).
Page 9
The Right to Strike/Freedom
of Association
• Many gradations and regimes, based on
– Restriction of strikes
– Provision of emergency services
– Method of setting terms & conditions
• Ten regimes
– Unregulated strike regime
• Two types
– Regulated strike regime
• Three types
– Strike ban regime
• Three types
– Collective bargaining illegal regime
• Two types
Right to strike - Haiven
Page 10
Type of regime
1
2
3
4
5
6
Unregulated
strike A
Unregulated
strike B
Restrictions on strikes
Strikes allowed at any time; any sector
Strikes allowed only at conclusion of
collective agreement; any sector
Regulated strike Strikes allowed only at conclusion of
A
collective agreement; restrictions on
strikes in some sectors (e.g. government
services, health care)
Regulated strike Strikes allowed only at conclusion of
B
collective agreement; restrictions on
strikes in some sectors (e.g. government
services, health care)
Regulated strike Strikes allowed only at conclusion of
C
collective agreement; restrictions on
strikes in some sectors (e.g. government
services, health care)
Strike ban A
Strikes forbidden by law for certain
sectors (e.g. government services, health
care)
Method of defining emergency
services (ES)
The parties voluntarily negotiate ES
themselves.
The parties voluntarily negotiate ES
themselves.
The parties voluntarily negotiate ES
themselves.
Free collective bargaining
Free collective bargaining
“Free” collective bargaining, but limited
strike effectiveness due to emergency
services regimes
“Free” collective bargaining, but limited
Parties first try to negotiate ES
rd
strike effectiveness due to emergency
voluntarily. If this fails, 3 party (e.g.
labour board, arbitrator, essential
services regimes
services commission imposes.
Emergency services set out in legislation; Collective bargaining takes place
essential services commission interprets nominally but strike restrictions severe
details
Emergency services provision presumed
unnecessary due to strike ban. No legal
provision for illegal strike. Severe
penalties for illegal strike.
7
Strike ban B
Strikes forbidden by law for certain
Emergency services provision presumed
sectors (e.g. government services, health unnecessary due to strike ban. No legal
care)
provision for illegal strike. Severe
penalties for illegal strike.
8
Strike ban C
9
Collective
bargaining not
protected by
law
Collective
bargaining
Strikes forbidden by law for certain
Emergency services provision presumed
sectors (e.g. government services, health unnecessary due to strike ban. No legal
care)
provision for illegal strike. Severe
penalties for illegal strike.
Strikes not protected by law; workers
Emergency services provision presumed
subject to dismissal under common law; unnecessary due to strike ban. No legal
other penalties
provision for illegal strike. Severe
penalties for strikes.
Strikes not protected by law; workers
Emergency services provision presumed
subject to dismissal under common law; unnecessary due to strike ban. No legal
10
Method of setting out terms and
conditions of employment
Collective bargaining takes place
nominally but strike ban makes it difficult.
Arbitrator makes binding decision on all
items remaining in dispute. No
conditions placed on arbitrator.
Collective bargaining takes place
nominally but strike ban makes it difficult.
Arbitrator makes binding decision on all
items remaining in dispute. Legal
conditions placed on scope of arbitrator’s
discretion.
Some collective bargaining may take
place but government imposes
“settlement by edict.”
Collective bargaining may occur but only
if employer agrees
Collective bargaining is illegal even if the
employer agrees.
Gradations of Right to Strike
and Violation of Conventions
Unregulated Regulated
strike A – all strike A – ES
sectors
bilateral
negotiations
Unregulated
strike B – only
after ca/ expiry;
voluntary ES
negotiation
Regulated
strike C – ES
designation by
law
Regulated
strike B – ES
employer
designation
Strike ban A –
arbitration
substituted
without
conditions on
arbitrator
Freedom
Doesn’t violate
international
Right
to strike - Haiven
conventions
Strike ban B –
arbitration
substituted with
conditions on
arbitrator
Collective
bargaining not
protected by
law
Strike ban C –
“Settlement by
edict”
Collective
bargaining
forbidden by
law
Restriction
Area of dispute
Violates international
conventions
Page 12
Gradations of Right to Strike
and Violation of Conventions
Unregulated Regulated
strike A – all strike A – ES
sectors
bilateral
negotiations
Unregulated
strike B – only
after ca/ expiry;
voluntary ES
negotiation
Regulated
strike C – ES
designation by
law
Regulated
strike B – ES
employer
designation
Strike ban A –
arbitration
substituted
without
conditions on
arbitrator
Freedom
Doesn’t violate
international
Right
to strike - Haiven
conventions
Strike ban B –
arbitration
substituted with
conditions on
arbitrator
Collective
bargaining not
protected by
law
Strike ban C –
“Settlement by
edict”
Collective
bargaining
forbidden by
law
Restriction
Area of dispute
Violates international
conventions
Page 13
Gradations of Right to Strike
and Violation of Conventions
Unregulated Regulated
strike A – all strike A – ES
sectors
bilateral
negotiations
Unregulated
strike B – only
after ca/ expiry;
voluntary ES
negotiation
Regulated
strike C – ES
designation by
law
Regulated
strike B – ES
employer
designation
Strike ban A –
arbitration
substituted
without
conditions on
arbitrator
Freedom
Doesn’t violate
international
Right
to strike - Haiven
conventions
Strike ban B –
arbitration
substituted with
conditions on
arbitrator
Collective
bargaining not
protected by
law
Strike ban C –
“Settlement by
edict”
Collective
bargaining
forbidden by
law
Restriction
Area of dispute
Violates international
conventions
Page 14
Gradations of Right to Strike
and Violation of Conventions
Unregulated Regulated
strike A – all strike A – ES
sectors
bilateral
negotiations
Unregulated
strike B – only
after ca/ expiry;
voluntary ES
negotiation
Regulated
strike C – ES
designation by
law
Regulated
strike B – ES
employer
designation
Strike ban A –
arbitration
substituted
without
conditions on
arbitrator
Freedom
Doesn’t violate
international
Right
to strike - Haiven
conventions
Strike ban B –
arbitration
substituted with
conditions on
arbitrator
Collective
bargaining not
protected by
law
Strike ban C –
“Settlement by
edict”
Collective
bargaining
forbidden by
law
Restriction
Area of dispute
Violates international
conventions
Page 15
Three Permanent Models of
Strike Regulation in Canada
1. permanent strike ban (PSB)
–
substitute binding arbitration
2. regulated strike (RS)
–
designation of essential services”
•
–
3 types – (see next slide)
3rd party assistance/obligation
3. unregulated strike (URS)
–
–
treated like private sector
Essential services voluntarily negotiated
+ AD HOC LEGISLATION
–
alarming new development:
“settlement by edict”
Right to strike - Haiven
Page 16
Public Sector Strike Regulatory Regimes
Permanent strike ban
Regulated strike
Unregulated strike
Notes
1Choice
of options - arb or strike
Draconian essential services
designation
3 Provincial constabulary – no strike
Municipal – strike
4St.John’s no strike; others – strike
5BC enacted ad-hoc leg in 2005
outlawing a teacher’s strike
2
Right to strike - Haiven
1
2
3
Health
Care
Civil
service
Police
Fire
K-12
Schools
BC
2
2
1
1
2*
AB
1
1
1
1
3
SK
2
2
2
2
3
MB
2
2
1
1
3
ON
1
2
1
1
3
QU
22
2
1
1
3
NB
2
2
1
1
3
NS
3
1
1
3
3
PE
1
1
1
1
1
NL
2
2
33
34
3
Fed
21
21
3
2
2
Page 17
Common points
• strikes happen!
– strike bans don’t stop strikes
– penalties don’t stop strikes
– settlement-by-edict invites civil
disobedience (e.g. Nova Scotia)
• no model works perfectly
• power not balanced
• settlements rejected from
below
– membership-driven
Right to strike - Haiven
Page 18
Common points II
• Struggle in labour relations intimately
linked with public concerns about public
services e.g. health care system
– Manitoba Nurses’ Union “bargaining for the
future of health care”
– battle for stewardship of health care
Right to strike - Haiven
Page 19