Law Times

Page 10 FOCUS December 2, 2013 Law Times • Dispute resolution threatened by bill C-4, critics warn Government introduces sweeping changes to labour rules for public service BY CHARLOTTE SANTRY Paul Cavalluzzo, senior partner at Cavalluzzo Shilton McIntyre Cornish LLP, says the legislation hands the minister of finance the right to "dictate" egislation aimed at reducing trade unions' barsalary increases. gaining power is a threat to the dispute resolu"They have effectively neutered the arbitration tion system, lawyers are warning. system," he says. The proposed amendments to the Public Although the legislation applies only to federal Service Labour Relations Act, contained in bill C-4, workers, it could set the tone for changes in other could also lead to strikes and court challenges, critics jurisdictions. are suggesting. "I'm sure that the provincial government will Under the amendments, federal workers could be looking at this legislation and making policy only enter arbitration if the government agreed that decisions based on it," he says. was the best way forward. Currently, either party can "Our arbitral criteria is a very contentious issue, press for arbitration. particularly in Ontario." The government would also have the exclusive However, George King, an arbitration lawyer at right to decide which union members are essential in McTague Law Firm LLP, argues the wording of the the event of a strike. Under the present law, the parties 'I think the underlying approach is to go bill leaves enough leeway for arbitrators to interpret negotiate such matters and sometimes refer them to an through redundancies and downsizing,' says the criteria flexibly. independent body to decide. George King. For example, unions could highlight factors in One of the most controversial proposals is the the local, regional or provincial economy, he says. new criteria for arbitrators in considering pay levels and other terms The amendments would also change the rules so that bargaining and conditions. units in which 80 per cent or more of members were essential would The bill says the arbitration board is "to be guided by and to give pre- be able to seek arbitration. ponderance to" the following factors: the necessity of attracting compeThe figure is "arbitrary," according to King. tent people to, and retaining them in, the public service in order to meet King sees the changes partly as an attempt to push through public the needs of Canadians and Canada's fiscal circumstances relative to its sector reforms. "I think the underlying approach is to go through restated budgetary policies. dundancies and downsizing," he says. 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Shipping and handling are extra. Prices subject to change without notice and subject to applicable taxes. AvAilAble Risk-FRee FoR 30 DAys order online: www.carswell.com Call toll-Free: 1-800-387-5164 in toronto: 416-609-3800 www.lawtimesnews.com King, who acts for employers, also argues that by restricting access to arbitration, the changes could help keep union pay demands in check. "Fire and police have been getting much better wage increases because of the arbitration process," he says. "They were getting two- to three-per-cent increases during the downturn," he adds. But lawyers have strongly criticized the government's approach. The national labour and employment law section of the Canadian Bar Association wrote to the government on Nov. 18, 2013, expressing "profound concerns" about "the process for legislative amendments in bill C-4 dealing with labour and employment law." Bill C-4 brings together many different legislative amendments onto one 322-page document instead of introducing them as separate laws. The CBA letter states: "Enacting important changes in diverse and unrelated subject areas in a single bill precludes meaningful comment and debate." It's wise and customary to consult labour and management groups over "significant" changes, it suggests. It adds: "Advance consultation on proposed changes to labour legislation and tribunals also minimizes the vulnerability of changes to challenge under sections 2(b) and (d) of the Canadian Charter of Rights and Freedoms. "Charter challenges are increasingly commonplace in the labour context." Cavalluzzo agrees with the CBA and complains the government is introducing the amendments without having them "properly debated in Parliament." "If you take away the right to strike, you have to allow for effective arbitration," he suggests, calling the changes unconstitutional. Many public sector unions are likely to challenge the legislation in court, he believes. Plans to scrap the pay and research arm of the Public Service Labour Relations Board would increase the risk of strikes and leave pay decisions even more vulnerable to challenges, he says. That's because, without solid industry information to point to, the government would face greater difficulties in justifying pay awards. The government, however, is defending the changes. "The proposed amendments to the Public Service Labour Relations Act will help to ensure that the public service remains affordable, modern, and high-performing," said Kelly James of the Treasury Board of Canada Secretariat. "These amendments have been put forward with the intent to streamline the collective bargaining process to ensure that negotiations are fair and reasonable to both employees and taxpayers." LT

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