Saskatchewan essential services law struck down

CBC News 
Feb 6, 2012

A Saskatchewan law limiting the ability of public sector workers to go on strike has been ruled unconstitutional by a Queen's Bench judge.

In a 132-page decision released Monday, Regina Justice Dennis Ball said the Public Service Essential Services Act, also known as Bill 5, infringes on workers' rights and is of "no force or effect."

However, a "declaration of invalidity" will be suspended for a year, Ball said.

The law, bitterly opposed by labour groups, was passed by the Saskatchewan Party government in 2008.

It sets out a process where some workers — such as nurses and snowplow drivers — can be declared essential and banned from going on strike.

The problem with Saskatchewan's law, Ball ruled, is that it doesn't give employees an adequate dispute resolution process where they can challenge which employees are designated as essential.

"Although the benefits that accrue from the statutory limitations on the rights to bargain collectively and to strike are significant, they are clearly outweighed by their deleterious effects on the employees affected," Ball said in the decision.

Ball was also asked to look at Bill 6, amendments to the Trade Union Act, which ended the practice of automatic union certification in cases where a majority of employees sign union cards. Instead, a secret ballot vote is required to unionize a workplace.

The Trade Union Act amendments also raised the threshold percentage of workers needed to trigger a vote — to 45 per cent from 25 per cent.

However, Ball rejected arguments that the Trade Union Act amendments were unconstitutional.

During a trial last year, the Saskatchewan Federation of Labour and more than two dozen unions argued that the two pieces of legislation, which were passed in 2008, infringe on the rights of people to form unions and bargain collectively with their employers.

Lawyers representing the government argued the legislation was reasonable and does not infringe on the Charter of Rights and Freedoms.

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

Ball noted other provinces have essential services legislation, but Saskatchewan's is unique.

"No other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly, as the PSES Act," he said.

While Ball declared the essential services law unconstitutional, the effect won't kick in for more than a year.

That will give the two sides an opportunity to talk about remedies.

Ball said he will meet with both sides to talk about what should happen next.