The government’s new labour laws are confusing and costly
by Gregory Beatty
Heading into Labour Day, two issues are crucial for organized labour in Saskatchewan. The first is the long process the government has embarked on to draft regulations to accompany the Saskatchewan Employment Act (Bill 85), which was passed in the waning days of the spring session.
The second is the Supreme Court’s impending decision on whether it will grant the SFL and its co-litigants leave to appeal an April Saskatchewan Court of Appeal ruling upholding the constitutionality of Bills 5 and 6. Passed early in the Saskatchewan Party’s first term, those bills deal with essential services and amendments to the Trade Union Act [see sidebar].
When Bill 85 was passed in May, the NDP opposition and organized labour expressed concern about the scope of the undertaking and the damage it could cause to the provincial economy.
Those concerns remain, says NDP labour critic David Forbes.
“We’re disappointed in the government’s whole approach. They seem intent on getting us bogged down in a sideshow, whereas for us there’s other priorities — starting with workplace safety. Last year we had 60 people die in Saskatchewan workplaces. It’s a record number, and it’s a shameful number.”
“The government is attempting to consolidate 12 pieces of legislation comprising 800-1000 pages into one [198 page] act,” says SFL president Larry Hubich. “Then there’s the regulations that need to be drafted to give life to the legislation. That’s thousands more pages. They’re attempting to do this in a window that makes doing a proper job impossible. There’s so many things that have slipped through the cracks or gone missing from the previous acts.”
In early August, the Saskatchewan Professional Fire Fighters Association condemned one provision in Bill 85 that raised the threshold at which firefighters in smaller communities could access binding arbitration to settle a contract dispute.
“There used to be a separate act called the Platoons Act that set out the terms and conditions of employment for firefighters in that specialized field,” says Hubich. “One [section] said if the union stated in its constitution that its members wouldn’t strike, they got access to binding arbitration.
“They folded the Platoons Act into Bill 85 and ratcheted up the community size from 10,000 to 20,000. If you’re a firefighter in a city like Weyburn or Swift Current now, you don’t get that protection for foregoing your right to withdraw your services. That was something the government decided without any consultation with the unions involved.”
Another Bill 85 provision that’s raised a red flag, says Charles Smith, an assistant professor of labour politics at the University of Saskatchewan’s St. Thomas More College, is the creation of a new category of supervisory employee that’s distinct from rank-and-file union members.
“A big question there is how do you define ‘supervisory’? Unions are certainly concerned that’s going to lead to the fracturing of bargaining units.”
Given the massive scope of Bill 85, Forbes expects there will be many more “discoveries” as the legislation is fleshed out in regulations. And no shortage of confusion, either.
“In May in committee, [Labour Minister Don Morgan] said he had some basic concepts around minimum wage, that they were just working on the wording and it would be in place for Jan. 1, and employers would be getting sufficient notice,” says Smith.
“Now we’re hearing that he’s gone back to the drawing board and wants general input on issues like whether there should be a minimum call-out. I really hope he’s not entertaining the idea of a two-tiered minimum wage. All this will be dealt with at the cabinet table though, and not in the legislature — because the bill’s been passed.”
That top-down approach is symptomatic of the government’s general approach to labour policy, says Smith.
“They’re taking away basic freedoms that have existed at least since WWII. It speaks to a massive shift in how the government regulates labour relations. It’s going to be harder for people to organize, bargain, and strike.”
Unlike Morgan’s predecessor, Rob Norris, who rammed through contentious legislation like Bills 5 and 6 with little or no consultation with organized labour, Smith does credit Morgan with being more open to receiving input on legislative initiatives. From July 23-Sept. 27, the Ministry of Labour Relations and Workplace Safety is seeking online feedback on a discussion paper on regulations to accompany the Saskatchewan Employment Act (lrws.gov.sk.ca/modernizing-legislation). And an advisory committee will provide further feedback on the regs once they’re drafted.
“I’m on the committee as one of nine labour representatives,” says Hubich. “I think they’ve released a document with some of the regulations, but I haven’t had a chance to look at it. Once again, they’ve done it in the middle of summer which makes it difficult for people and organizations to devote the resources they need to do a proper job.”
Bill 85 is divided into 10 parts covering areas like employment standards, labour relations and occupational health and safety. Essential services — which are in legal limbo until the Supreme Court decides whether to grant leave to appeal on the Bill 5 constitutional challenge — are represented by a placeholder.
As for the regulations attached to the other nine sections, says Forbes, “it’s going to be a dog’s breakfast.
“The first part, labour relations, was supposed to happen this fall,” says Forbes. “Now, it sounds like it’s being pushed back to Christmas. Then other parts, like occupational health and safety, have many more regulations. So it’s going to be quite a process over the next three or four years.”
Not only will this create uncertainty for workers, says Hubich, it will also create headaches for employers.
“If the government enacts the section on labour relations and forces supervisors out of their current bargaining units, that has the potential to lead to multiple bargaining units in workplaces, which would lead to increased labour relations costs for employers who would be required to negotiate multiple collective agreements.
“There’s another area where they’ve redefined what a manager is. That will strip workers of the right to even join a union, which we believe violates freedom of association provisions under Canada’s charter. All these things are going to cost money and cause disruption in the workplace.”
As the government moves through Bill 85 section by section, additional confusion will inevitably result because some parts of the labour landscape will be governed by the new law, while other parts will remain under the old legislative framework until new regulations are drafted.
Government, labour and employers aren’t the only interested parties here, either.
“The Labour Relations Board is going to be looking for some direction on how to adjudicate different disputes,” says Smith. “That will be a big question mark.”
“There’s a whole body of jurisprudence that’s been established over the past few decades through board hearings and case law,” says Hubich. “If the government changes a term like ‘bargain in good faith,’ that opens the door to having principles that have been well-established through precedent re-litigated, because lawyers can now argue there’s new legislation and the old interpretation no longer applies. So that’s going to escalate costs for businesses and unions.”
The Road Goes Ever On
When Paul McCartney played Mosaic Stadium on Aug. 14, one of the songs he performed was the 1970 Beatles classic “The Long and Winding Road”.
When it comes to the legal battle that organized labour has waged against two pieces of labour legislation passed by the Saskatchewan Party government in 2008, SFL head Larry Hubich can likely relate.
Following the passage of Bills 5 and 6, which dealt with essential services and amendments to the Trade Union Act, the SFL and its allies launched legal action alleging that the acts violated the charter rights of workers. In February 2012, the plaintiffs scored a major victory in Queen’s Bench Court when Justice Dennis Ball declared Bill 5 unconstitutional. That ruling was subsequently reversed in a Saskatchewan Court of Appeal ruling in April 2013, however.
But the SFL isn’t finished — it’s sought leave to appeal to the Supreme Court of Canada.
“Our expectation is there will be some sort of indication from the Supreme Court by the fall of this year, and if leave is granted, we’d probably be looking at late 2014 or early 2015 before we’re in court,” says Hubich.
Bill 6 has been upheld at both the Queen’s Bench and appeal court level, so the odds of the Supreme Court granting leave there are long. But if he was a betting man, Charles Smith of St. Thomas More College says he would expect the court would grant leave to appeal on Bill 5.
The Saskatchewan Court of Appeal decision on essential services, he says, “was bizarre on a host of levels. The court essentially begged the Supreme Court to make a decision that it, itself, was unwilling to make.”
Normally in Canadian jurisprudence, lower courts make decisions, offer reasons for why they decided as they did, and then those reasons are analyzed and refined by senior courts up to and including the Supreme Court.
This time, says Smith, it happened differently.
“The court basically said, ‘We don’t know what to say. The Supreme Court needs to clarify.’ In my opinion, it was really a poor decision. It told us nothing. So I think there’s going to be a lot of pressure on the Supreme Court to hear the appeal because the court of appeal has almost tied their hands.”
In ruling Bill 5 unconstitutional in February 2012, Justice Ball criticized the government for removing the right of public sector workers to strike without providing an alternative mechanism like binding arbitration to help advance collective bargaining. In doing so, he drew on legal principles that had been established by the Supreme Court in previous cases.
But the law is far from clear, says Smith.
“As it stands now, there’s a right to organize — it’s weak, but it’s there. There’s a right to bargain, kind of. But we don’t know about the third pillar of the labour relations regime, which is the right to strike. That’s the one that’s at issue in Bill 5. So there’ll be some pressure on the court to hear the appeal. “But we’ll see.” /Gregory Beatty