Canada Constitutionalises the Right to Strike: Could the Same Happen in Australia?

There has recently been a good deal of controversy in Australia concerning the extent to which labour unions right to strike is being restricted by statute.

This was fuelled by the recent decision of the High Court in Esso Australia Pty Ltd v Australian Workers Union[1] where the plurality found that s413(5) of the Fair Work Act 2009 (Cth)(“the FWA”) could have far reaching effects in preventing strikes by workers.

Similarly, in Sydney Trains, NSW Trains[2]the Fair Work Commission interpreted ss 424 and 425 of the FWA as also having far reach effects in restricting the ability of labour unions and workers to strike.

In contrast to the position in Australia of expansive interpretations being placed on provisions that have the effect of restricting when labour unions can legally strike, in Canada the Canadian Supreme Court has recently found that the right to strike is protected by the right to freedom of association contained in the Canadian Constitution and the Canadian Charter of Rights and Freedoms.

The case in which the Supreme Court of Canada did this was Saskatchewan Federation of Labour v Saskatchewan [3] (“Saskatchewan Federation of Labour”) in 2015.  However, that decision is best understood as part of a line of cases that began with the decision of the same Court concerning the right to freedom of association in Health Services and Support – Facilities Subsector Bargaining Association v British Columbia (“Health Services Bargaining”).[4]

While there is no space in this brief blog to set out the reasoning of the Court in these cases in the detail that it deserves a brief overview will be attempted. In Health Services Bargaining the Court found that some activities were central to freedom of association even though they may be inconceivable on the individual level. One of these was the right in engage in workplace bargaining on fundamental workplace issues. Because such collective bargaining was central to freedom of association it was held to be protected as a constitutional right and the government could not substantially interfere with that right without violating the Canadian constitution.

This was followed by a line of cases which required recourse should an employer not bargain in good faith[5] and independence and choice on the part of workers to pursue their collective interests.[6]

The judgment of Abella J for the majority in Saskatchewan Federation of Labour essentially built upon that reasoning. It found that the right to strike was an “indispensable component” of “meaningful collective bargaining”. It held that without a right to strike “a constitutionalized right to bargain collectively is meaningless”.

The Australian constitutional system is obviously quite different from that in Canada. Most obviously the Australian constitution no charter or bill of rights similar to that in Canada.

However, there is an implied freedom of political communication in the Constitution that some judges, such as Gageler J in Tajjour v New South Wales[7] say includes as part of its very fabric a freedom of association.[8] While the reach of that freedom of political communication, and perhaps the intertwined freedom of association is likely to be less that the freestanding rights to freedom of expression and association in the Canadian Constitution, constitutional questions would appear to arise in Australia as to what extent reasoning similar to that in Saskatchewan Federation of Labour could be adopted by the High Court.

Would a strike by a labour union in Australia be a form of political communication protected by the freedom of political communication? Is there is a freedom of association that exists as a corollary of, or part of, that freedom. If so, would a strike by a labour union be protected by such a freedom of association?

If there is a freedom of association implied in the Australian Constitution, following Health Services Bargaining and Saskatchewan Federation of Labour, such a freedom would appear to be hollow and meaningless in the case of labour unions unless they had the freedom to bargain with employers about workplace issues and to strike as part and parcel of their freedom of association.

There would be arrange of issues that would have to be dealt with in such a constitutional argument that there is not space to expand upon here. However, even on a narrow view of the implied freedom of political communication that did not countenance an implied freedom of association it is hard to see how workplace issues could not be characterised as “political” issues given their salience in Australian political debate. Indeed, since federation workplace issues have loomed large among the issues that have been contested at Australian federal elections.

Although it is limited, it would also seem arguable that the implied freedom of political communication is not limited to elections and the political statements in relation to them. In that regard, the statement of Mason CJ, Toohey and Gaudron JJ in Stephens v West Australian Newspapers Ltd[9] at [232] that the implication extends to all levels of political discussion would still appear to have some salience.

Even if the High Court did not go as far as the Canadian Supreme Court on the basis that the freedom was implied, potential appears to exist for parts of Australian labour law to be constitutionalised.

If that was so, at least aspects of s413(5) and ss424 and 425 of the FWA may be unconstitutional.

What would required for the potential for constitutionalisation to be realised is both the right judges to be sitting on the High Court and capable and creative lawyers to gradually seek to guide the Court down the Canadian path to workplace constitutional protections for workers.

[1] [2017] HCA 54.

[2] [2018] FWC 632

[3] [2015] 1 SCR 245.

[4] [2007] 2 SCR 391.

[5] Ontario v Fraser [2011] 2 SCR 3.

[6] Mounted Police Association v Canada [2015] 1 SCR 3.

[7] (2014) 254 CLR 508 at [578].

[8] See also McHugh J in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at [225] and Gaudron j in Kruger v Commonwealth (Stolen Generations Case)(1997) 190 CLR 1 at [126].

[9] (1994) 182 CLR 211.

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