Round two defeat is not the end of the story

by Gregory Beatty

When Saskatchewan Federation of Labour president Larry Hubich held a press conference after the Court of Appeal released its April 26 decision on the constitutionality of two pieces of labour legislation (Bills 5 & 6) passed early in the Saskatchewan Party government’s first term, the mood should have been somber.

The court, after all, had not only upheld Queen’s Bench justice Dennis Ball’s February 2012 ruling that Bill 6’s amendments to the Trade Union Act were constitutional, it had also reversed Ball’s finding that Bill 5’s essential services provisions contravened section. 2(d) of the Charter of Rights & Freedoms tied to Freedom of Association.

Yet during his briefing, Hubich reported that he’d had a conversation earlier that morning with Labour Minister Don Morgan.

“He acknowledged, notwithstanding this decision, that Bill 5 is flawed, and that the government has made a commitment to fix it,” said Hubich. “And he’s interested in continuing the dialogue around doing that.”

Before Bill 5 was enacted, public sector unions had argued essential services legislation wasn’t necessary, as they had protocols in place to protect public safety during labour disputes.

Two concerns flagged by the SFL and its co-plaintiffs in court proceedings were the fact that once public sector employers designated employees as essential — which they did in droves once Bill 5 was enacted — unions had no right of appeal. Also, in lieu of depriving public sector workers of the right to strike, no substitute mechanism —  like binding arbitration —was provided for in the bill.

According to St. Thomas More College labour specialist Charles Smith, the legality of Bill 5 is still murky.

“My initial thoughts reading the case were that the Court of Appeal was almost begging the Supreme Court for clarification,” he says. “It’s a great mystery as to why the Supreme Court hears the cases it does, Bbut in this instance, I think there will be some pressure on it to hear the case.”

That won’t happen, of course, unless the SFL and its co-plaintiffs decide to seek leave to appeal. They have 60 days to do that, and then, if the Supreme Court agrees to hear the appeal, they will have a third opportunity to argue the constitutionality of Bill 5.