December 1, 2011
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At stake is the constitutionality of two pieces of legislation passed in 2008.
Bill 5 (Public Service Essential Services Act) empowered public service employers in areas like health and security to designate employees as essential to their operation. Once designated, the employees lose the right to strike as part of collective bargaining. Bill 6 (Trade Union Amendment Act) rejigged longstanding rules around union certification, permitting employers to communicate with employees during union drives, and changing the voting requirements, generally making union certification more difficult.
Saskatchewan’s labour movement, not surprisingly, detests the laws.
In 2010, the SFL obtained a ruling from the United Nations International Labour Organization that the bills, by diminishing the ability of Saskatchewan workers to organize and bargain collectively, had violated their international human rights. Despite its name, the ILO is a tri-partite body composed of representatives from labour, business and government. And before they issue a ruling, there has to be unanimous agreement amongst the delegates.
The ILO was pretty stern in its condemnation, but its powers are limited — it can’t legally force compliance with a ruling. It can only request that a government take steps to rectify perceived deficiencies in legislation.
In Saskatchewan’s case, the ILO had six recommendations to ensure workers’ human rights weren’t violated.
Then-Labour Minister Rob Norris dismissed the ruling, saying it wasn’t some of the ILO’s best work. That’s not an atypical response, says Charles Smith, an assistant professor at St. Thomas More College in Saskatoon. Both the Harris government in Ontario and Campbell government in B.C. were equally disdainful of ILO decisions against them. But that doesn’t mean the ruling was a pyrrhic victory for the SFL, Smith says.
In 2007, says Smith, the Supreme Court of Canada gave weight to an ILO ruling in a case launched by B.C. Health Services against the Campbell government.
“In Health Services, the argument was made that the ILO is an international agreement that Canada has signed, and that the Charter of Rights and Freedoms and the values it encompasses should be as strong, and the Supreme Court [accepted that position],” says Smith.
“The reason the SFL went to the ILO is to get a similar ruling so they could include it in their case,” he says.
In its challenge, the SFL is arguing that Bills 5 and 6 violate s. 2, 7 and 15 of the Charter related to freedom of association, freedom of expression, security of person and equality. The government’s defence is grounded in s. 1 of the Charter — namely, that any infringement of workers’ rights that’s occurring is justifiable in a free and democratic society.
Bills 5 and 6 were passed by the Wall government shortly after the Supreme Court released its Health Servicesdecision. Using it as a precedent, Smith thinks that the SFL has a definite argument that the bills are unconstitutional.
But that’s not the only legal precedent that’s applicable.
“In a judgment issued this spring, the Supreme Court, I won’t say neutered, but they certainly limited what Health Services stood for,” says Smith.
“[Ontario (Attorney General) vs. Fraser] related to an association in Ontario for agricultural workers. There was no duty for employers to negotiate, no right to strike, no mechanism to force the employer to the table. But the court said, ‘It’s good enough because employers will listen. They don’t have to, but they will. And that’s good enough to satisfy s. 2(d) of the charter.’”
Regardless of what Justice Dennis Ball decides, the SFL case is likely to end up in the Supreme Court. Historically, says Smith, labour was reluctant to resort to the courts. “The courts have traditionally been seen as the domain of the employers,” he says.
But with the rightward drift of politics in Canada in the last three decades, labour has largely been shut out of government decision-making.
Prime Minister Stephen Harper has already appointed four judges to the nine-member court. Two other judges are set to retire by 2014.
Once Harper appoints replacements, there’ll be a comfortable six to three majority of Conservative appointees — so the likelihood of the court continuing to read expansive labour rights into the constitution, as it did in Health Services,is far from certain.
“Increasingly, labour finds itself pressuring from the outside rather than the inside whereas business has an increasing tendency to pressure from the inside,” noted University of Regina political science professor Tina Beaudry-Mellor in an August interview. “The ability to influence government policy, of course, goes with that.”
Even labour relations boards, which were traditionally the preferred venue for labour to resolve disputes with employers, have been made less attractive through tweaks to their composition and procedures that have made them less labour- and more employer-friendly.
“I don’t fault the SFL for what they’re doing, not when so many other avenues have been shut down by governments,” says Smith. “But there’s only so much that can be gained from judicial interpretation because the courts are very much grounded in conservative jurisprudence.”
One of the core principals of that jurisprudence, Smith says, is that courts generally respect the law-making power of democratically elected governments, “so there’s a huge mountain to go over here.”
Should the court decide in its favour, SFL head Larry Hubich says, “We’re calling for the legislation to be struck. Then, if the government has an interest to bring in legislation to replace [the bills], they have an obligation to engage in a dialogue with the labour movement,” he says.
Even if it lost, the Saskatchewan government could invoke the Charter’s infamous “notwithstanding clause.” Generally, governments are reluctant to use s. 33 because they don’t want to be seen as eroding human rights. But there is a historical precedent in this province, says Smith.
“In the 1980s there was a dispute between RWDSU and the Saskatchewan government, and Grant Devine threatened to use the notwithstanding clause if the union was successful at the Supreme Court. They ended up not being successful. Assuming the SFL was to win, the government could say, ‘Well, that’s fine. But we’re going to keep our legislation notwithstanding the court ruling.’”
In today’s anti-labour climate, it’s questionable how much political fallout the Sask. Party government would suffer. And the premier and his cabinet are very definitely intent on weakening organized labour in the province, says Smith.
“The only real opposition to the Wall government right now is the labour movement. They’re the most vocal, the most organized, and the best financed. The NDP’s in rebuilding mode, and don’t have the institutional capacity that the labour movement does,” he says.
“And I think Mr. Wall recognizes that. That’s why he’s floating even more restrictive labour laws.”