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Guest Blog: Barnacle on Saskatchewan’s Labour Law Reforms and the Legal Challenges Against Them

I noted in a previous entry that reforms were underway in Saskatchewan as the Saskatchewan Party followed in the footsteps of Mike Harris’s Conservative government in Ontario and Gordon Campbell’s Liberal Party in B.C. in seeking to attract investment by weakening labour laws and the strength of unions. In this illuminating Guest Blog, union-side labour lawyer Peter Barnacle of Woloshyn & Co. in Saskatoon explains the reforms and describes how the labour movement is responding through legal action.

One of the issues involves the sudden, mid-term dismissal of Vice-Chairs of the labour board that the new government believed were not sympathetic to its anti-union perspective. This was a tactic used by the Ontario Conservative government in the 1990s too, and was found to be illegal under Ontario law. The government also introduced some extremely restrictive “essential services” legislation and other labour law reforms designed to undermine union organizing and collective bargaining.

Here is Peter’s Guest Blog:

The Saskatchewan labour movement is challenging initiatives restricting collective bargaining rights by the new provincial government.  In December 2007, the newly elected government introduced Bills 5 and 6 in the Legislature without any prior consultation or even warning to trade unions or the Saskatchewan Federation of Labour.

Bill 5 is now the Public Service Essential Services Act and combines one of the broadest definition of public services in the country with the most extensive coverage in the public sector (including municipalities and universities, for example) and with one of the most restrictive appeal mechanisms.  Thus, an employer, while obligated to try and negotiate essential services with the union prior to the commencement of collective bargaining, may unilaterally designate the services to be maintained in the absence of any subsequent agreement.  And all the union can do in such circumstances is appeal the numbers of employees designated to provide those services before the Labour Relations Board, not whether the services themselves as determined by the employer are in fact essential.

The major impact of Bill 5 is on the collective bargaining process as the bargaining power of those unions and their members affected has now been substantially limited.  An employer can now designate a high level of services that must be maintained and the union’s ability to effectively strike is seriously restrained.  Unlike in the federal jurisdiction, there is no provision that would permit a union to trigger compulsory arbitration to resolve a collective bargaining dispute if the level of essential services designation is such that a strike would become ineffective.

The companion Bill 6 brought in amendments to the Trade Union Act in Saskatchewan.  The most significant is the introduction of mandatory votes for certification without any time frame for those votes taking place.  The concept of union elections has arisen out of the United States and has led to development of a specialty industry that helps employers there avoid unionization.  Unlike other Canadian jurisdictions, the open-ended period for such a vote to be held now in Saskatchewan now raises the spectre of such employer campaigns in this province.

The opportunity for employer coercion and intimidation is also now enhanced in Saskatchewan with the accompanying Bill 6 amendments to the unfair labour practices provisions of the Act that now broaden the scope of acceptable employer communication with employees.  While the repeal of the previous restrictions also impacts on collective bargaining and union-member communication in an established bargaining relationship, the impact may be most strongly felt in the organizing process. Employers, in combination with the mandatory vote in an unspecified period, will now have greater freedom to communicate views on the union drive to employees without fear of running afoul of the Trade Union Act.

These legislation amendments, and the new Public Service Essential Services Act, came into effect in late May 2008 and are now subject to a Charter challenge filed in late July by the Saskatchewan Federation of Labour and eighteen trade unions operating in the province.  The claim before the Court of QueenÕs Bench will not likely be heard until late this year and any decision is no doubt destined for appeal.  Charter violations alleged include the section 2 freedoms of association, expression, and assembly, along with protections under law pursuant to s7 and the s15 equality rights protections.  The claimants have also alleged that the legislation is in violation of international law, given the ILO and human rights commitments binding on Canada through conventions and other treaties.

It may well be that the overreaching of the Saskatchewan government in its attack on labour may ultimately advance labour rights under the Charter.  We have the previous examples of the Ontario government did with agricultural workers in the late 1990′s that lead to the Supreme Court of Canada’s revisit of freedom of association in Dunmore (2000), and the British Columbia government with health care workers in the early 2000′s that led to overturning the former Labour Trilogy by the Supreme Court in the BC Health Services (2007).

Nonetheless, the Saskatchewan government was not content with introducing the new legislation to advance its political and economic agenda, but also sought to ensure that the application and interpretation of that legislation would be more “business friendly”, as it was put by the Premier, Brad Wall, in various public statements in the legislative debates.  Thus, the chair and the two vice-chairs of the Saskatchewan Labour Relations Board were summarily fired in March 2007.  The Government, through the Premier and also the Minister of Labour, relied on the claim that the Order in Council appointments could be rescinded without cause.  The former chair and one vice-chair have since reached settlements with the Government.

The Saskatchewan Federation of Labour and two unions filed a court action in June to have the Order in Council dismissing the former Chair and vice-chairs and appointing the new Chair, declared void.  The claim is both narrowly and broadly framed.  The narrow claim is that the combination of firing the former members without cause and the stated direction to the new Board to consider the Saskatchewan Party’s policy statements and to create a more business friendly environment in the province (claims which are supported by affidavit evidence of policy statements, legislative demands and media transcripts) has led to institutional bias at the Labour Relations Board.  The broader claim is that the purpose of the Trade Union Act is to promote freedom of association for workers in Saskatchewan and the Government must make appointments to the Board in a manner consistent with that purpose and cannot give policy directions to the Board inconsistent with that purpose. The LRB motion will now be heard at the end of September 2008 and no doubt will generate subsequent appeal activity as well.

The overall objective of these challenges to force the Government to recognize labour rights as fundamental democratic rights.  The SFL and trade unions are also applying political pressure on the Government.  Overall, the fight-back process will be lengthy, but the stakes for Saskatchewan workers and their unions are also very high.

Thanks Peter.  We will watch this lawsuit carefully

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