Court strikes down Saskatchewan essential services law but allows tough restrictions on unionization

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Unionist
Court strikes down Saskatchewan essential services law but allows tough restrictions on unionization

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Unionist

[url=http://www.cbc.ca/news/canada/saskatchewan/story/2012/02/06/sk-labour-la... essential services law struck down[/url]

Quote:

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 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. [...]

"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. [...]

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.

 

Bärlüer

This is pretty huge: the decision actually recognizes a constitutional right to strike. The next logical step after the constitutional recognition of collective bargaining (only in 2007...). Will read tomorrow.

Unionist

Ah yes, 132 pages...

Thank God for Bärlüer!

Unionist

Nice to see the MSM fighting back against the dictatorship of the Saskatchewan Party:

[url=http://www.thestarphoenix.com/business/Ruling+labour+smacks/6111579/stor... on labour smacks government[/url]

Quote:

Crucial in the subtle battle for the hearts and minds of those in the "new Saskatchewan" has been to portray a self-entitlement image of left-wingers in the "old Saskatchewan."

The underlying messaging from Premier Brad Wall's government since the Saskatchewan Party's victory in 2007 has clearly been that the province's hardworking taxpayers no longer shall be bullied by leftist elitists who abused their unearned, elevated status during years of NDP rule. [...]

The government's propaganda machine also hasn't been shy about less directly implying the same message, particularly on the labour front. Its fight always has been with union leaders - not rank and file workers who've always somehow been duped into voting for strikes by leaders working against New Saskatchewan's interests.

Such is the stranglehold of this almighty union leadership that it was the government's duty to free the rank and file from the shackles of leaders, who eagerly waste precious union dues on writ-period ads critical of the government. [...]

So, after years of being told that the only issue here was the squawking of union leaders too used to getting their own way, a senior justice has now told us that the government's bill essentially bullies Saskatchewan workers.

The ruling is a blow to the Wall government, and its entire narrative.

 

josh

It's not as positive a ruling as the headlines would lead you to believe.  It upheld the elimination of card check.  And it found the problem with the law was not the classification process, but the failure to set out a procedure for determining classification:

"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."

 

 

Unionist

Josh, you're right about card check, but I tried to reflect that in the thread title.

As for essential services, it is impossible to get a ruling that all essential service legislation is unconstitutional. Even the ILO conventions, which sturdily defend the right to strike in a way that is still not recognized in this country, makes exceptions for various services. For example, the Canada Labour Code prohibits the withdrawal of services when that withdrawal would create "an immediate and serious danger to the health and safety of the public". Those are universally recognized as legitimate limitations on strikes and lockouts. And contrary to the Saskatchewan legislation, there is a dispute resolution process which is actually functional.

However, Parliament is "supreme" (that is, whichever party controls Parliament), so it regularly bans strikes and imposes binding arbitration beyond what the Code allows, by ad hoc legislation. I don't know enough about the Saskatchewan law to know how draconian it is (aside from the dispute resolution issue). But to hope that the court would strike all that down is unfortunately to be overly optimistic.

 

Unionist

Unionist wrote:

Ah yes, 132 pages...

Thank God for Bärlüer!

Hey Bärlüer - have you finished doing my reading for me yet?? Tongue out

Unionist

Never mind - the Saskatchewan Court of Appeal has returned to capitalist sanity:

Appeal court upholds Sask. labour law changes

Quote:

Saskatchewan's highest court has upheld two key pieces of the provincial government's labour legislation.

On Friday, the Saskatchewan Court of Appeal ruled that both the province's Essential Services Act and its changes to the Trade Union Act are constitutional.

The decision is a crushing blow to the Saskatchewan Federation of Labour, which had sought to strike down both pieces of legislation. [...]

"The province’s appeal with respect to the Essential Services Act must be allowed," Richards said in the decision. "In 1987, the Supreme Court ruled that freedom of association does not comprehend the right to strike. Its decisions on this point have never been overturned." [...]

The Saskatchewan Federation of Labour could ask the Supreme Court of Canada to look at the case. It has 60 days in which to apply to the court for leave to appeal. [Larry] Hubich says it will take time to make that decision.

Come on, Larry!!! The Court of Appeal is almost begging the Supreme Court to review the 1987 trilogy and reconcile it with the B.C. health services decision. Let's go!!!

 

kropotkin1951 kropotkin1951's picture

The Sask government is being extremely smart. This is a fight over whether or not labour groups should be consulted and Wall's government has said lets sit down and consult and then pass a new law almost the same as the old law but one that was the subject of consultations.  At which point there is no live issue to take to the SCC.

Quote:

In February, 2012, Regina Queen's Bench Justice Dennis Ball ruled Bill 5, the essential services law, was of no force or effect because labour groups hadn't been property consulted.

...

"I think that there is an acknowledgment on the part of the government notwithstanding this current decision by the Court of Appeal that the current essential services law is flawed and needs to be fixed," he said.

Don Morgan, the province's minister of labour relations, said he'll be listening to Hubich, and others, before any changes are made.

"I don't know, at the end of the day, if we'll have something that everyone will agree on," Morgan said Friday, "But we want to have as much input as we possibly can."

http://www.cbc.ca/news/canada/saskatchewan/story/2013/04/26/sk-labour-la...

 

Unionist

Unionist wrote:

 

Come on, Larry!!! The Court of Appeal is almost begging the Supreme Court to review the 1987 trilogy and reconcile it with the B.C. health services decision. Let's go!!!

 

Good old Larry Hubich followed my sage advice... and guess what:

[url=http://www.cbc.ca/news/canada/saskatchewan/supreme-court-strikes-down-sa... Court strikes down Saskatchewan law that prevents right to strike - Court says province's essential services law is unconstitutional[/url]

YAY!!

At least someone is looking after human rights in this country.

 

 

Bärlüer

It's a superb decision.

I was expecting the Court to recognize some form of protection of the right to strike, but I honestly thought the protection would be more restrictive/circumscribed.

Justice Abella, the most progressive member of the Court wrote the judgment this time (whereas Chief Justice McLachlin and Justice LeBel wrote the other constitutional labour law judgments). Her approach is slightly less "cautious" than that of her colleagues, so we end up with a judgment that is quite clear and unabashed. Still, she garnered the support of 4 of her colleagues.

So, a great result, which provides some significant ammunition against potential anti-union legislative interventions.

sherpa-finn

And some of the surrounding issues and trickle-down implications are discussed here:

http://www.pressprogress.ca/en/post/supreme-court-ruling-may-strike-major-blow-anti-union-laws-across-canada

This could be very interesting...

Unionist

Bravo [url=http://www.ndp.ca/news/supreme-court-ruling-victory-workers]Alexandre Boulerice[/url]:

Quote:
“The Supreme Court has recognized that the right to strike is constitutionally-protected,” said Boulerice. “This should be a warning to governments of every level in Canada that would try to trample on this important right.”

Of every level, and of all stripes.

 

6079_Smith_W

Brad Wall is suggesting he may use the notwithstanding clause in response to the Supreme Court ruling.

http://www.leaderpost.com/news/saskatoon/Wall+floats+notwithstanding+cla...

Quote:

“We’re going to look at the court’s ruling with respect to our new legislation to see if we can accommodate what they’re saying but still have essential services protection for people so that a strike or a lockout does not threaten public safety or health,” Wall said.

“If we can do that, we’ll make a few changes to the legislation and we’ll proceed. If it looks like we cannot do that, then the only option we would have is to use the notwithstanding clause.”

Evidently he thinks he has a big enough majority that the law doesn't apply to him.

 

 

Unionist

Why does he need a majority?

Where is the very vocal and ardently pro-worker Saskatchewan NDP on this issue?