Law Times

Page 10 March 31, 2014 • Law TiMes www.lawtimesnews.com Bill C-4 Will workplace arbitration ever be the same? FOCUS espite vocal opposi- tion from employee and union lawyers, the government has passed Bill C-4 into law. e bill drastically alters the playing field for public sector unions representing federal go- vernment workers and anyone covered under the Canada La- bour Code as well as the labour arbitration system. Not surpris- ingly, court challenges are on the horizon. e bill seeks to modernize the collective bargaining and recourse systems provided by the Public Service Labour Rela- tions Act regime. It gives the go- vernment the exclusive right to determine whether any service, facility or activity is essential and the positions that have duties necessary to provide essential services. It also amends the fac- tors arbitration boards and pu- blic interest commissions must take into account when making awards or reports. Paul Cavalluzzo, a consti- tutional and labour lawyer at Cavalluzzo Shilton McIntyre Cornish LLP in Toronto, describes the relevant provi- sions as oppressive legislation that obliterate the right to strike and the chance of fair arbitration. "Without ques- tion, it will be challenged. ere are a number of areas that are legally problematic. It was shipped in as part of the budget implementation with no consultation with the public or with public service unions. e present jurispru- dence requires some kind of consultation before collective bargaining changes are made. at's a fairness issue." Steve Barrett of Sack Goldblatt Mitchell LLP re- calls that historically, federal governments of various po- litical stripes have conducted extensive consultations and obtained independent reports and studies before making changes to labour laws. "e Harper government did nothing of the kind. at is very problematic given the conflict of interest it is in when legislating for its own employees." Barrett appeared as an expert witness before the commit- tee studying the bill only to learn while in the midst of his evidence that the deadline for making amendments had al- ready passed. "It didn't feel like a very useful exercise," he says. Despite the procedur- al problems, Barrett feels the focus of any challenge should be on the substance of the legislation. "e first basis is that the power to designate up to 80 per cent of the workforce as essential services, without any inde- pendent review or access to an alternate means of re- solving the dispute, runs up against and violates the right to freedom of association." Cavalluzzo agrees. "In effect, it obliterates the right to strike for federal pub- lic servants because it gives the employer the power to determine how strong a strike can be." Cavalluzzo notes the legisla- tion would allow the employer to designate 100 per cent of the services as essential but doesn't expect that to happen. "e act says that if more than 80 per cent is essential, then the dispute must be resolved by ar- bitration rather than the right to strike. e employer will declare just under 80 per cent to make the strike a useless weapon and preclude the use of arbitration." He considers the change a huge invasion of the right to strike. "In my view, s. 2(d) of the Charter, which refers to the freedom of association, protects the right to strike. e court would find that it is not justified under s. 1. ere is no jurisdic- tion on this continent that gives the employer that kind of au- thority and power." Barrett also points to interna- tional precedents. "Various bod- ies in the International Labour Organization have consistently interpreted Convention 87 to say that you cannot take away the right to strike from workers unless they are truly essential in the narrowest and strictest sense. ere is also considerable inter- national opinion that there must be a meaningful substitute such as independent arbitration." He notes that the Supreme Court held in its Ontario (Attor- ney General) v. Fraser and Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia decisions that the international interpre- tation is highly persuasive if not determinant of the approach under the Charter of Rights and Freedoms. "Protection under s. 2(d) is to be no less than the protection afforded under the international treaties to which Canada is a party." e second major ground of concern relates to s. 148. It dic- tates that the arbitration board is to give preponderance to two factors: the necessity of attract- ing competent persons and Canada's fiscal circumstances relative to its stated budget- ary policies. "Even if the federal public service goes to arbitra- tion, the independence of the ar- bitration process is obliterated," says Cavalluzzo. "ere are two key determi- nants prescribed and both are employer sensitive. ey are dic- tating to the allegedly indepen- dent arbitrator the key consid- erations it must apply and both favour the employer's position." Barrett suggests that ordering the arbitrator to give primary weight to the government's uni- laterally determined fiscal poli- cies rigs the decision or prede- termines the matter in advance, an issue visited by the Supreme Court in the 1987 trilogy of la- bour law cases. Public sector unions across the country echo the concerns. Isabelle Roy, general counsel for the Professional Institute of the Public Service of Canada, con- firms there's a plan to challenge the legislation although noth- ing has been filed as yet. "Get- ting 18 bargaining agents' heads together is a challenge. We are using the existing mechanism of the national joint council to work through the challenge to Bill C-4. We are also waiting for the result of the challenge by the Saskatchewan Federation of La- bour, which is due to be heard by the Supreme Court in May." at case arose out of the Public Service Essential Services Act passed by the Saskatchewan government in May 2008. It also gives employers the power to dictate which workers are essential. In February 2012, the Saskatchewan Court of Queen's Bench ruled that the law was unconstitutional with Justice Dennis Ball stating that "no other essential services legisla- tion in Canada comes close to prohibiting the right to strike as broadly, and as significantly." e Saskatchewan Court of Appeal reversed the decision and found that the right to strike doesn't have Charter protection. e case is now proceeding to the Supreme Court as one of a trio of decisions that will clarify the court's position on how far freedom of association extends under s. 2(d) of the Charter. In February, the top court heard the first pair of cases in the trio dealing with the rights of Royal Canadian Mounted Police members to organize and bar- gain collectively. Roy notes some unions are seeking intervener status in the Saskatchewan proceedings. Barrett believes that if the Supreme Court finds freedom of association protects the right to strike, there will be a power- ful argument that legislation like Bill C-4 is unconstitutional. LT NOT TOO BIG. NOT TOO SMALL. We are a law rm that combines experience, leadership and teamwork. We align best practices with exibility and pragmatism. We have an innate appreciation for each client's unique challenges. If this sounds like the right t for you, you've discovered Right-sized Thinking TM . Find out how this approach can assist you. Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts Untitled-1 1 13-11-06 2:35 PM BY JUDY VAN RHIJN For Law Times D International precedents have held that govern- ments can't take away the right to strike unless workers are truly essential in the narrowest sense, says Steve Barrett.

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