Unions’ case based on right to association and right to collective bargaining
As postal workers launch their constitutional challenge of the federal government’s back-to-work legislation, unions in Saskatchewan prepare to launch their own constitutional battle based on the Charter of Rights and Freedoms.
First launched in 2008, the legal challenge will be argued in Regina from Nov. 14 to 25.
The case centres on two pieces of legislation. Bill 5, the Public Service Essential Services Act, prevents certain public workers — not limited to emergency workers — from going on strike during a labour dispute.
Employers and unions are required to decide before the expiry of an existing collective agreement which services and positions are essential. If they can’t reach an agreement, the employer decides who must work during a strike to maintain essential services. The union can challenge that decision at the Saskatchewan Labour Board.
Bill 6 made several amendments to the province’s Trade Union Act, such as requiring a mandatory vote for all union certifications regardless of how many cards are signed. It also allows employers to voice their opinions during an organizing campaign, previously considered an unfair labour practice.
The Saskatchewan Federation of Labour (SFL) — supported by 25 organizations and unions, including the Saskatchewan Union of Nurses, Canadian Union of Public Employees and Service Employees International Union West — argues the bills infringe workers’ freedom to organize, bargain collectively and strike.
“The breadth and scope of this legislation is so broad as to declare almost any workplace as essential,” says Larry Hubich, president of the SFL. “Our argument is that the right to strike is essential to collective bargaining.”
Hubich says the SFL will introduce evidence that demonstrates the “downstream” effects of Bills 5 and 6 since their introduction.
“This has impaired the union’s ability to negotiate a collective agreement because the employer holds all the power,” he says. “Workers are going months and months in bargaining without the ability to get anything meaningful at the table.”
Hubich cites the situation of some hospital laundry workers who have been without an agreement for three years.
But the crux of the issue is not necessarily the outcome but the process, he says, noting that previous case law in Canada, including the Dunmore and B.C. Health Services decisions, supports the Charter right to freedom of association and the right to bargain collectively.
The Canadian Federation of Independent Business (CFIB), one of several employer groups that supported and agitated for Bills 5 and 6, argues workers’ rights have not been removed.
“The right to strike remains in place,” says Marilyn Braun-Pollon, vice-president, Prairie and Agri-business with the CFIB. “They’re just being asked to negotiate ahead of time which services and workers are essential. The goal is to keep the public from being held hostage.”
Saskatchewan was among the last provinces in Canada to introduce public service essential services legislation. Bills 5 and 6 “modernized” labour laws in the province, she says, noting 60 per cent of business owners surveyed by the CFIB are now “satisfied” with the balance of labour legislation.
Although the SFL argues the absence of essential services legislation has never put health, safety or other public interests at risk, Braun-Pollon says that’s no justification for not having it.
“You can’t just gloss over it by saying we’ve never had a problem,” she says. “A lack of a plan can create issues.”
The SFL will be relying on an earlier complaint to the International Labour Organization (ILO) to support its case.
Among other things, the ILO has established that governments must consult with trade unions, something Hubich says did not happen in a “meaningful” way before or after the legislation was introduced.
