Unions win big as the Supreme Court punts Brad Wall’s law

by Gregory Beatty


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 on. So the hubbub over Dressler’s signing was a welcome distraction.

Still, the Bill 5 story got plenty of media play — 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 St. Thomas More College political scientist Charles Smith.

“Certainly, having watched the last few cases since Health Services in 2007, 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. Bill 5’s flaws, though, 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 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 does 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.”