Law Times

Law Times • April 13, 2015 Page 15 www.lawtimesnews.com Essential services legislation saskatchewan case changes landscape for labour arbitration By JUdy van rhiJn For Law Times he Supreme Court of Canada has demanded a meaningful dispute resolution mechanism for essential services employees if the government interferes with their right to strike. In its Jan. 30 decision in Sas- katchewan Federation of Labour v. Saskatchewan, the top court found the prohibition against strikes interferes with the mean- ingful process of collective bar- gaining and violates s. 2(d) of the Charter of Rights and Freedoms. With several constitutional chal- lenges in play and bargaining ongoing under similar federal leg- islation, stakeholders are reassess- ing their strategies. The Supreme Court case refers to Saskatchewan legislation that allows the government to declare up to 80 per cent of public sector employees as essential and pro- hibits them from striking with no other meaningful mechanism for resolving bargaining impasses. Steve Barrett, of Sack Goldblatt Mitchell LLP, calls it a significant victory for working people. "The right to strike has been with us for centuries, not decades, and it is now enshrined in our Constitution. It's a wonderful vic- tory for workers." The majority of the Supreme Court clearly found the right to strike isn't merely derivative of collective bargaining but is an indispensable component of it. "Where good faith negotiations break down, the ability to engage in the collective withdrawal of ser- vices is a necessary component of the process through which work- ers can continue to participate meaningfully in the pursuit of their collective workplace goals," the court stated. Barrett says that's consistent with international precedents. "Various bodies in the Interna- tional Labour Organization have consistently interpreted Conven- tion 87 to say that you cannot take away the right to strike from workers unless they are truly es- sential in the narrowest and strict- est sense," he says. "There is also considerable international opinion that there must be a meaningful substitute such as independent arbitration." Barrett believes the right to strike is also part of Canada's history. "It's a very democratic right workers should have, espe- cially today when neo-conser- vative policies have made things so difficult for the labour move- ment and unions." Isabelle Roy, general counsel at the Professional Institute of the Public Service of Canada, notes the government's Bill C-4, the Economic Action Plan 2013 Act, was a federal equivalent of Saskatchewan's Public Service Essential Services Act. "Like the [Saskatchewan legislation], it gives unilateral power regarding essential services to the extent of what is essential, how many are essential, and which positions. Like the [Saskatchewan law], the labour board has no oversight of that. That part of the legislation is of great concern. We are all hop- ing the federal government will avoid wasting taxpayers' money and repeal those parts that are clearly unconstitutional, but there is no indication that they are willing to do that yet." Paul Cavalluzzo, of Cavalluzzo Shilton McIntyre Cornish LLP, represented several interveners in the case that have their own con- stitutional challenges pending. "Certainly, in respect of the federal legislation it looks very similar to the Saskatchewan legis- lation," he says. "I would think the Supreme Court of Canada deci- sion should be very instructive to the federal government. They should withdraw their legislation and try again." Cavalluzzo believes the deci- sion has established the right to strike as a fundamental freedom. "What I think is very impor- tant is that it's given freedom of as- sociation a very robust interpreta- tion. It recognizes that the whole purpose of freedom of association is to permit people to associate to stand up against more powerful corporations." However, he's not optimistic the federal government will share his view. "Knowing this govern- ment, they have such little respect for the rule of law and democratic principles it will take the federal public sector unions taking them back to court and challenging it. It's unfortunate because it is very similar legislation." Roy notes the federal govern- ment hasn't issued a general re- sponse on the impact of Saskatch- ewan Federation of Labour but it has given an indication of its po- sition. "In a proceeding before the Public Service Labour Relations and Employment Board involv- ing a fellow union, the Public Ser- vice Alliance of Canada, the gov- ernment made submissions to the effect that the Supreme Court's decision in the [Saskatchewan] case applies only to the Saskatch- ewan legislation and therefore should have no bearing on the federal law on essential services." The Professional Institute of the Public Service of Canada is now reviewing its litigation strat- egy. "The [PIPSC] and its partner bargaining agents on the national joint council are working on a complaint to the International Labour Organization regard- ing the essential services process contained in [Bill] C-4," says Roy. "We are also preparing a con- stitutional challenge to be filed in April contesting the consti- tutional validity of C-4, in par- ticular [with regards to] the es- sential services designation pro- cess and the provisions around the predominant factors to be considered by an arbitration panel or conciliation board, which include the government's willingness to pay as opposed to ability to pay." The arbitration issue is key, ac- cording to Cavalluzzo. "The court has said if the legislation takes away the right to strike, in its stead it must provide independent, ad- equate, and fair arbitration. If the arbitration criteria are skewered in favour of the employer, clearly it's not fair." Roy believes the federal legisla- tion clearly doesn't meet the test in Saskatchewan Federation of Labour. "They require you to go before an arbitration board that is bound to live by the economic policy of the day as opposed to what might be more important factors," she says. "That is an aspect of the legisla- tion the institute is very interested in challenging. Previously, our bargaining units could choose the dispute resolution route they wanted: either strike or arbitra- tion. Typically, they chose arbi- tration, but that was a different process with different factors to be considered." The Saskatchewan case is already having an impact on bargaining rounds that are un- derway. "All federal members are currently bargaining under the federal [essential services] legisla- tion," says Roy. "The institute had been chal- lenging the federal government employer on its views around the transitional provisions of C-4. The government had essentially taken the position that, for this first transitional round of bargaining, [the in- stitute's] health services group, even though it was designated at over 85-per-cent essential, was required to be on the concilia- tion/strike route. "After the [Saskatchewan] decision, the institute reiterated its arguments that the govern- ment's interpretation led to ab- surdity and stated that the deci- sion rendered the government's approach unconstitutional." The Professional Institute of the Public Service of Canada ac- cepts that its members do provide essential services but believes they have a right to a fair, impartial, and effective dispute resolution technique other than a strike. In the meantime, Roy notes the Treasury Board of Canada Secretariat has now consented to arbitration under other leg- islation. "The question that is left hanging is that if you must go before an arbitral board which is bound by predominant factors, paraphrased as the government's willingness to pay and ability to pay, is it constitutional?" LT FOCUS TF: 1.888.223.0448 T: 416.868.3100 YOUR ADVANTAGE, in and out of the courtroom. (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP\RXDUHSXWWLQJ \RXUUHSXWDWLRQRQWKHOLQH,WLVDOODERXWWUXVWZHOOSODFHG Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. www.thomsonrogers.com TRUST SLOAN MANDEL | DARCY MERKUR | DEANNA GILBERT Untitled-2 1 2015-04-08 9:43 AM T The right to strike 'has been with us for cen- turies, not decades, and it is now enshrined in our Constitution,' says Steve Barrett.

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