Deep Sixed By The SCC

The SFL’s historic win has an unfortunate, Bill 6-sized blemish

by Gregory Beatty

The historic Jan. 30 decision wasn’t a total victory for the SFL and its co-plaintiffs. Like Queen’s Bench Court Justice Dennis Ball and the Saskatchewan Court of Appeal before them, the Supreme Court upheld the constitutionality of The Trade Union Amendment Act.

Passed along with Bill 5 early in the Saskatchewan Party government’s first term, Bill 6 raised the threshold on the number of workers needed to sign union cards to trigger a certification vote from 25 to 45 per cent. It also instituted a secret ballot when workers were considering forming a union, and broadened the ability of employers to communicate with workers in the workplace when a union drive was underway.

The changes, which were implemented to purportedly balance the playing field between management and labour, conveniently ignore the significant power imbalance between employers and employees, critics (correctly) argue.

“At both Queen’s Bench and the Court of Appeal there was a recognition that the impact of this legislation was a decline in the ability of workers to unionize in Saskatchewan,” says SFL lawyer Peter Barnacle. “We presented evidence on the impact of similar legislation in Ontario, Manitoba and B.C.

Despite having that recognition, we couldn’t get the courts to appreciate what this was about.”

“It’s a recurring anti-worker theme we see in governments across Canada, including the federal government, putting obstacles in the way of workers freely associating and organizing in the workplace,” says Joie Warnock, western director UNIFOR. “It’s a real challenge to meet the court’s threshold to show the harm it does.

“The right to join a union in Canada is not a right, it’s a risk. That’s evident by the drop in the number of certifications after Bill 6,” Joie says.

2015-02-05