The Freedom of Association: The Emerging Right to Strike Consensus in International and Domestic Labour Law

Abstract

The paper discusses the emerging international consensus that both collective bargaining and strike activity are important labour rights for workers which are protected even when not expressly referenced in constitutional instruments with particular reference to Canadian and African case law. In January 2015, the Supreme Court of Canada released its decision in Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4 (SFL), which recognized that Canadian workers have a constitutionally protected right to strike. In 1982, Canada adopted its Charter of Rights and Freedoms which guaranteed the freedom of association to Canadians, but without further explanation as to the extent of that freedom. The Canadian courts, relying on international and comparative law, have defined the scope of the freedom of association to include the rights of workers to organize, strike, and collectively bargain. The development of Canadian, and other domestic labour law, draws increasingly on international law sources, including decisions of the International Labour Organization’s Committee of Freedom of Association, the European Court of Human Rights, and ILO Conventions 87 and 98. Canadian jurisprudence in particular has been recognized by jurists in other countries as a persuasive source of constitutional rights.