February 13, 2012

Legislation limiting strikes ruled unconstitutional

RICHARD GILBERT

staff writer

The Saskatchewan Court of Queen's Bench has ruled new legislation limiting the ability of public sector workers to go on strike is unconstitutional.

“This is an extremely important decision for working people, not only in Saskatchewan, but for those across the country,” said Larry Hubich, president of the Saskatchewan Federation of Labour (SFL). “

An important message has now been sent to Legislatures from B.C. to the Maritimes that working people’s charter rights are more important than any government’s ideology.”

Justice Dennis Ball said in a 132-page decision released last week that the Public Service Essential Services Act, which is also known as Bill 5, infringes on workers rights.

“I have determined that the rights to bargain collectively and to strike are protected by s. 2(d) of the charter,” he said in the decision.

“The Public Services Essential Services Act infringes on those rights by empowering all public sector employers to make non-reviewable decisions that can effectively preclude the capacity of their employees to engage in meaningful strike action, and thus to engage in meaningful collective bargaining.”

Bill 5 included a definition of essential services so broad that almost any public service employee could be unilaterally designated essential by the government and therefore not allowed to exercise the right to strike.

It was widely regarded as the most sweeping and heavy-handed essential services legislation in Canada.

The problem with Bill 5 is that it doesn’t give employees an adequate dispute resolution process, where they can challenge which employees are designated as essential.

For this reason, the court is allowing Bill 5 to remain in place for one year, to give the provincial government time to resolve the issues.

“In summary, Canadian and international law supports the restriction or prohibition of strikes by essential services employees provided that it is based on a minimal and proportional analysis and, where strike action is substantially abrogated, accompanied by a fair and adequate resolution scheme,” said the judge.

Given this fact, the provincial government remains committed to essential services legislation.

“For people travelling on winter highways or requiring emergency health care in our hospitals, it is imperative that we ensure services are available when needed,” said Labour Relations and Workplace Safety Minister Don Morgan.

“The ruling upholds the principle of essential services and gives reasonable opportunity to amend the essential services legislation in areas where it is necessary.”

Bill 6, intended to amend the Trade Union Act, was upheld in the decision.

These amendments ended the practice of automatic union certification in cases where a majority of employees sign union cards.

A secret ballot vote is required to unionize a workplace.

The threshold percentage of workers needed to trigger a vote was also increased to 45 per cent from 25 per cent.

Justice Ball said this legislation doesn’t infringe on the rights of employees to organize, to bargain collectively and strike, which are all protected by the charter.

Unions argued that Bill 6 drastically reduced the rights of workers by restricting the ability of working people to join unions and to engage in collective bargaining.

They also said Bill 6 left workers with less protection against unfair practices from employers.

The National Union of Public and General Employees (NUPGE) filed a complaint against the legislation in 2008 with the International Labour Organization (ILO).

A complaint was also filed by the SFL on behalf of more than a dozen other unions in the province.

The ILO ruled in March 2009 that Bills 5 and 6 were in violation of ILO Convention No. 87 – Freedom of Association and Protection of the Right to Organize, which Canada and all provincial governments have ratified.

The ILO directed the province to rewrite the laws in full consultation and co-operation with workers and labour groups affected.

It’s believed to be the first time in Canada an essential services law has been taken to court on a charter challenge.

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