The Saskatchewan government has tabled amendments to Part VII of the province’s Employment Act in light of the Supreme Court of Canada’s January 30, 2015 decision, which struck down as unconstitutional an essential services law that prevents some public sector employees from striking.
Taking into consideration that the Supreme Court confirmed the maintenance of essential public services during a work stoppage is a proper concern for governments and public sector employers, and this must be done while respecting workers’ rights to take job action because it plays a crucial role in a meaningful process of collective bargaining, the government has submitted the following amendments as summarized below:
- Remove the definition of “essential services.” The parties will determine what services are essential for their respective organizations.
- Establish an Essential Services Tribunal, an independent third-party dispute resolution body that would render decisions on what are essential services as well as whether an essential services agreement substantially interferes with the exercise of a strike or lockout. The tribunal would be comprised of the chair or vice-chair of the Labour Relations Board and a representative appointed by each of the parties to the dispute.
- Provide for binding mediation-arbitration by a three-person panel when an essential services agreement is found to substantially interfere with the exercise of a strike or lockout.
- Require the parties to include in the Notice of Impasse whether there are essential services to be maintained in the event of a strike or lockout.
- Change the cooling-off period from 14 days to seven days in cases where essential services are identified.
- Establish a maximum time period of 60 days for binding mandatory mediation/conciliation under the labour relations part of the Act, except where the parties mutually agree to a longer time period.
Moreover, under the proposed amendments, no job action could occur until an essential services agreement is negotiated or established through third-party dispute resolution.
Bill 183, the Saskatchewan Employment Amendment (Essential Services) Act, 2015, tabled in the legislature on October 15, 2015, was developed in collaboration with public sector employers, the unions that represent their workers, and government representatives, following public consultations.
Several unions have stated that they are pleased with the binding arbitration process proposed in Bill 183, but “continue to have concerns about accessibility and timeliness of this and other resolution processes and will have to see how these work in practice.” They will follow closely the legislative process until its enactment.
As stated in this “Expert Affidavit on Essential Services,” by law professor Michael Lynk from the University of Western Ontario:
“Generally, the right to collectively bargain can be modified, and the right to strike can be limited or even prohibited, in the realm of essential services only if the services are truly essential based on the ‘endanger’ threshold.”
Based on this statement, the International Labour Organization (ILO) criticized several Canadian governments as being too inflexible in their statutory regimes for essential services. One observer notes that:
“[D]espite Canada’s commitment to the International Labour Organization’s declaration regarding the freedom of association and the effective recognition of the right to bargain collectively, the federal and provincial governments have repeatedly used unilateral action to override these rights for their own employees.”
It is pointless for Canadian governments to continue to ignore their own laws, as well as international labour and human rights laws, simply because they find it inconvenient to negotiate with unions. In the end, all this will do is damage labour relations and reduce the legitimacy of the law. By the same token, it doesn’t make sense to attempt to enact laws that violate fundamental human rights principles, particularly when it should be clear that such laws will be ruled unconstitutional.
How much time and money did Saskatchewan spend developing, enacting and defending this flawed legislation? What steps did the government take to ensure the legislation respected workers’ rights?
I believe that what is proposed in Bill 183 provides the government and the union the flexibility needed to allow workers to exercise their collective bargaining rights while maintaining essential public services. Of course, it remains to be seen what the law looks like when or if it is passed—and how the government applies it.