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August 18-31
VOL.14 ISSUE. 26

Essentially Serve This!

Gregory Beatty
Published Thursday February 5, 04:27 pm
Unions win big as the Supreme Court punts Brad Wall’s law

First off, let’s dispense with the rumour the Saskatchewan Party orchestrated Weston Dressler’s signing to coincide with the Supreme Court ruling on Jan. 30 that struck down a core piece of provincial labour legislation, The Public Services Essential Services Act.

Yes, I know premier Brad Wall tweeted that Dressler was “one essential service the Supreme Court can’t take away.” But c’mon, they couldn’t possibly have pulled a string like that with the Riders. Right?

Sure, the ruling was a black eye for the government — and a costly one. In addition to potentially millions in legal costs, the Province could be liable for damages to compensate public sector employees for having their rights infringed upon. So the hubbub over Dressler’s signing was a welcome distraction for Wall.

Still, the Bill 5 story got plenty of media play — and not just in Saskatchewan either.

“This is an historic decision for Canadian workers and the development of the Charter of Rights and Freedoms,” SFL legal counsel Craig Bavis said at a press conference. “It clarifies that workers have the right to engage in collective bargaining, and the right to strike is an inherent part of that process to protect their dignity and autonomy.”

The decision caught even veteran political observers by surprise.

“I thought they might say there was a limited right to strike, then through s.1 there would be some analysis that said, ‘But governments have a huge role to play in protecting the public and thus can limit it,’” says U of S St. Thomas More College political scientist Charles Smith.


What They Said

A round-up of remarks on the Bill 5 ruling

The Jan. 30 Supreme Court ruling on Bill 5 is huge and game-changing — a really big deal, in other words. Here’s what some of the key players said. /Gregory Beatty

“The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role… is why the right to strike is constitutionally protected.” —Supreme Court Justice Rosalie Abella, writing for the majority

“Certainly, our original legislation could have been done far better than it was. The costs were awarded against the Province. Those are not going to be cheap, as litigation is not something that is inexpensive.” —Saskatchewan Labour minister Don Morgan, via conference call from Ft. Lauderdale

“We find ourselves here today because of Mr. Wall’s rush to put ideology ahead of common sense and fairness. While we think this is an historic ruling by the Supreme Court, we are extremely disappointed about the costs incurred to defend a bad law when we knew for quite a while that it was a bad law.” —David Forbes, NDP labour critic

“As Canadians we value the Charter of Rights and Freedoms. So this decision today is not just a win for working people, it is also a victory for the values of fairness we all share. It is my hope that the Saskatchewan Party government will recognize its mistake, and pledge to never again let ideology get in the way of good public policy.” —Larry Hubich, SFL president

“We are encouraged that the Supreme Court decision reinforces respect for our democratic values and promotes workers’ rights to freedom of association. We are hopeful this decision will motivate the Saskatchewan government to understand the need to respect workers’ rights and workers’ voices in building our common future.” —Barb Cape, president of SEIU-West

“The Supreme Court has provided helpful guidance to the government on how to draft essential services legislation which does not violate the basic rights of Canadians, and has given the government a year to put appropriate laws in place. [We] are committed to working with the government to draft and implement essential services legislation which is both effective and legal.” —Tracy Zambory, SUN president

“Saskatchewan boasts a very proud, strong history of taking care of its workers. There is a lot of repairing to do in what has generally been a wounded conversation between our provincial government and the labour community.” —Bob Bymoen, SGEU presidentCertainly, having watched the last few cases since Health Services in 2007 [see sidebar], there seemed to be a trend — although Fraser in 2011 left some ambiguity. There, the judges were [examining] the Ontario government’s response to Dunmore, and that response was fairly narrow where they didn’t give agriculture workers the right to fully unionize.”

Two weeks earlier, the Supreme Court made another historic ruling when it granted RCMP members the right to unionize. “There was another case in 2013 where the Court talked about privacy on the picket line in Alberta and there was some pretty strong wording about the role of strikes and the right of workers to challenge their employer,” says Smith. “So there was a sense they were moving in that direction. The question was, how far were they willing to go?”

Pretty far, it turns out. The ruling doesn’t preclude governments from having essential services laws, but Bill 5’s flaws, in the eyes of the court, were too great to pass constitutional muster. It applied to a broad swath of the public service, gave unions no say in what workers/jobs were deemed essential, and provided no alternative method for workers deprived of the right to strike to reach a collective agreement.

The Court gave Saskatchewan a year to pass replacement legislation. As it happens, the Wall government already has a new essential services law ready to go. Bill 128 was passed in December as part of the Saskatchewan Employment Act, but has yet to be proclaimed.

Unlike Bill 5, labour was consulted in drafting the bill. But more work still needs to be done, says CUPE Saskatchewan president Tom Graham.

“[Labour minister Don Morgan] has indicated they were waiting for this decision to see if they had to do any more changes. I will leave that to the legal minds to determine if anything does contradict what the court has said. Having said that, I’d like to discuss with him details around arbitration and how it proceeds — what’s an effective strike and what isn’t, and who makes that decision, to ensure we get a fair shake.”

Morgan won’t be the only labour minister in Canada meeting with labour leaders to discuss the ruling. Last year, in fact, the Harper Conservatives passed major amendments to the Canadian Labour Code — some of them modeled after Bill 5.

Provinces such as Alberta, Nova Scotia, B.C. and Newfoundland all have essential service laws that will have to be reviewed too.

“This ruling gives every union that has some legislative action restricting its right to strike an ability to go to the courts to have it reviewed,” says Bavis. “Our interpretation is that every time a government [enacts legislation like] that, there’s an onus to justify it. The decision also applies to back-to-work legislation, which we’ve seen an increasing use of — particularly in the federal sector in the last five years.”

Anticipating further discussion between the Saskatchewan government and labour over Bill 128, Smith expects a more conventional approach to who is, and who isn’t, essential.

“Morgan seems like a pretty shrewd politician,” says Smith. “So I can imagine a new bill will come forward that will limit the more traditional essential services such as nurses, ambulance personnel, police and fire, [and labour] will demand binding arbitration.”


How Did We Get Here?

A timeline on the Bill 5 Supreme Court challenge


2007:Despite denying during the election campaign that it intended to pass essential services legislation (it was courting SUN at the time, remember?), the Saskatchewan Party introduces The Public Services Essential Services Actshortly after its November victory. By May 2008, Bill 5 and Bill 6 — the latter changing some requirements for union certification and communication in the workplace — are law.

2008:The SFL and affiliated unions file a complaint with the U.N.’s International Labour Organization. Later that year, they launch a court challenge arguing Bills 5 and 6 violate s.2(d) of the Charter of Rights and Freedoms related to freedom of association.

2010:The ILO finds both bills in violation of Convention 87 (Freedom of Association and Protection of the Right to Organize) that Canada and all Provinces are signatories to. Then-Labourminister Rob Norris dismisses the findings as “not some of the ILO’s best work.”

2012:Queen’s Bench Justice Dennis Ball rules Bill 6 constitutional, but declares Bill 5 unconstitutional. He gives the government one year to pass replacement legislation.

2013:On appeal, the Saskatchewan Court of Appeal upholds the constitutionality of Bill 5, citing as precedent the Supreme Court’s 1987 Labour Trilogy.

2014:After being granted leave to appeal, the litigants, along with multiple interveners on both sides, present their case to the Supreme Court on May 15.

2015:On Friday, Jan. 30, the court rules 5-2 that Bill 5 is unconstitutional, asserting that the ability to strike is “indispensable” to collective bargaining and therefore a constitutional right. /Gregory Beatty


Foe Or Friend?

Unions wouldn’t have won new Charter rights without anti-labour governments

In a celebratory press conference following the Supreme Court ruling, SFL legal counsel Peter Barnacle suggested the labour movement might want to send a Valentine (or words to that effect) to former Ontario premier Mike Harris, former B.C. premier Gordon Campbell and current Saskatchewan premier Brad Wall.


It starts with the Supreme Court’s Labour Trilogy in 1987. The Charter of Rights and Freedoms was only five years old then, and the court was feeling its way. In three cases exploring what rights organized labour had under s.2(d) freedom of association, the court was very restrictive.

“After the trilogy came down, labours’ hopes for the charter were somewhat diminished and there was a period where not much happened in charter litigation involving labour,” says Barnacle. “It took governments acting more out of [ideology] than labour relations sense to bring the courts back in.”

Enter Mike Harris. After the Ontario PCs were elected in 1995, they repealed a law the Bob Rae-led NDP had passed giving agricultural workers labour standards protection. Aided by the United Food and Commercial Workers, some agricultural workers brought a charter challenge. In Dunmore v Ont (AG) (2001) the Supreme Court began backing away from the trilogy, ruling that workers had a constitutional right to organize.

In 2007, the SCC extended s.2(d) to include the right to collective bargaining. That came in a case launched by B.C. health care unions after the Gordon Campbell-led Liberals passed a law removing key collective agreement protections from existing union contracts to open the door to privatization.

“Then we get the Brad Wall government which decides to bring in the most draconian public service legislation in Canada and the courts once again are engaged and now find that the right to strike is important,” says Barnacle.

“In 1987 none of those things were covered, outside of the ability to join a union. Now, in 2015, the courts are in the reverse position.” /Gregory Beatty

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