Negotiating Change: State Interventions in Public-Sector Collective Bargaining


Susan Cake, Athabasca University

This study examines state interventions into public-sector collective bargaining, unraveling both the historical trends and the contemporary shifts in government strategies. For decades, governments have intervened in public-sector bargaining to shape the final outcomes. Legislation restricting public-sector workers’ right to strike, ending labour disruptions, limiting the scope of negotiations, and imposing contract provisions have been common across jurisdictions and across political party lines in Canada. In recent years, the Supreme Court of Canada, in a series of decisions, extended Charter of Rights and Freedoms protection to collective bargaining and striking. In theory, these court decisions reduce governments’ ability to interfere with public-sector bargaining. In practice, however, the impact of these decisions has been both complex and limited. An analysis of government legislation finds the rate of government interference has increased markedly since 2000, despite Supreme Court decisions seemingly restricting the scope for such intervention. Surprisingly, the rate of interventions has almost tripled. Further, the analysis shows strategic adaptations by governments in response to the Supreme Court decisions such as altering the type and form of legislative interference they employ. The first stage of this research includes a comprehensive analysis of the frequency of state interventions into public-sector bargaining in Canada since 2000, shedding light on a notable increase in the rate of legislative interventions. This analysis looks at two types of state legislative interventions, dividing them into episodic and persistent interventions. Episodic interventions are generally single legislative events that only impact a select group of workers or a specific issue. Persistent interventions attempt to change the legislative landscape of public-sector bargaining. Examples of episodic interventions include back-to-work legislation or specific contract provisions that are legislated. Persistent interventions include essential services legislation, legislation impacting the right to strike as well as legislation impacting union governance. These different types of legislative interventions are then divided according to different periods marked by key Supreme Court of Canada decisions: pre- Health Services (2000-2007), post- Health Services (2008-2015) and post- Saskatchewan Federation of Labour ( SFL ) (2016-2022). The findings from this analysis demonstrate that the rate of state intervention after Health Services and again after SFL escalated. As well, governments seem to prefer to intervene in public-sector collective bargaining through episodic interventions, particularly back to work legislation, rather than persistent interventions. These observations suggest “permanent exceptionalism” as coined by Leo Panitch and Donald Swartz, continues to be a feature of public-sector bargaining. Overall, the data suggests expanding Charter protections has not reduced the rate of government interference in public-sector collective bargaining. In fact, the rate of interference has increased. However, the true evolution lies in how governments have adapted their intervention tactics to mitigate legal risks in response to Charter jurisprudence. The shift in the kinds of interventions used suggests that governments have shifted their approach to legislating contracts since Health Services , moving away from imposing settlements and focusing on creating the conditions that help them obtained their desired settlements instead. These findings suggest that Canadian governments are committed to using their legislative power to advance their interests as employers, actively responding to and attempting to head off court decisions. Consequently, workers and their unions ought not to overly rely upon Charter challenges to protect their interests.

Non-presenting authors: Jason Foster, Athabasca University; Bob Barnetson, Athabasca University

This paper will be presented at the following session: