NS Government should take heed of recent court decisions favouring unions

By Joan Wark
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It’s always nice for the NS Government to tell everyone that they are always right and of course the world is wrong.They like to spin out all the positives but at the same time spin out the negatives that this province is broke. One can say that we are broke because of bad decisions, decisions that cost a lot. Look at the P3 schools and the price tag of about $1 Billion, and now we must buy back schools. That was a risk back then and was a bad Liberal Government decision, one we are all paying for today. Now let’s consider the box they find themselves in today because of bad legislative decisions like the ones against the unions in NS: Bill 148, Bill 30 and Bill 37. All are in the process of legal challenges. These legal challenges are expensive, expensive because of the cost to prepare and present to the Supreme Court, but costly when you must live up to the outcome when you lose.

They are now struggling in BC to live up to that ruling affecting education. Sadly, many governments govern for the day and govern in the hope to get re-elected with no thought of how it will affect future governments or taxpayers. Often, it takes eight, ten, twelve years or more for cases to wind through the court system. For those of you that think these legislative bills are good, let’s take a look at just how often the unions have been successful in challenging legislation.

Let me be the first to say that we know there is no guarantee, nothing is for sure in these challenges. But the more challenges that come before the courts, the more success those challenges have on important aspects to the trade union movement like the right to strike, the right to belong to a union, the right to have free and fair collective bargaining and the right to maintain existing contract language and the better the chance we have to win. Below are a few important wins unions have had in the Supreme Court from across the Country challenging to some extent each of the above issues. These issues are all intertwined in legislative bills put forward by the Nova Scotia Liberals since coming to power three years ago.

  • The British Columbia Teachers’ Federation was successful in their battle against Bill 22 The Education Improvement Act of 2012, which imposed a wage freeze for the provinces 41,000 public school teachers and also prohibited bargaining on class size, class composition, and the ratio of teachers to students. The court ruled in their favour in early November 2016. It clearly said that the government legislation could not strike things out of a collective agreement that had been previously bargained.
  • The Saskatchewan win on Bill 5 called The Saskatchewan Public Services Essential Services Actwas a nice win.  Essentially the Bill allowed the employer to determine the designation of essential services during the strike if the two parties are unable to reach a negotiated settlement on essential services.  Giving the employer this ability had huge implications on the effect of the strike or job action.  In a 5 to 2 majority decision, the court there saw the right to strike as a constitutional right for all workers in Canada for both the private and public sector.  And the court also concluded that the right to strike is in the central part of the meaningful collective bargaining process.
  • The Federal Public Service Labour Relations Act and the Royal Canadian Mounted Police Act Regulations was another win in 2015.  This case essentially excluded members of the RCMP from engaging in collective bargaining under a section of the regulation.  The Act established a separate scheme different than collective bargaining to deal with labour relations between the RCMP officers and management.  The court concluded that the RCMP do have a degree of choice and independence to enable and determine and pursue their collective interest.
  • Bill 115 Putting Students First Act in Ontario started in 2012, ending in April 2016 when the Ontario Supreme Court ruled Bill 115 unconstitutional because it denies educational workers the right to collective bargaining and the right to strike.
  • A case was brought to court during the Harper government in 2011 on Bill C-6 restoring mail delivery for Canadians by the Canadian Union of Postal Workers (CUPW).  In April 2016, the Ontario Superior Court ruled that Bill C-6 violated the union members’ freedom of association and expression by legislating them back to work in June 2011.  Essentially the decision said that the bill substantially interfered with and disrupted the balance of meaningful process to collective bargaining between the CUPW and Canada Post.

Bill 148:  As you know the government introduced the Nova Scotia Public Services Sustainability Act (Bill 148) in December of 2015.  Bill 148 sets a collective bargaining pattern of a four-year deal for public sector employees, with wage increases of 3% over four years – 0% in years one and two, followed by raises of 1% in the third year, and 1.5% in the fourth year and .5% at the end of that fourth year. The Bill prohibits arbitrators from making awards that exceed the compensation framework, and declares that an award that exceeds the framework is of no force or effect. The Bill does not apply to collective agreements that have been negotiated prior to the Act coming into force or to collective agreements negotiated for the years following a four-year period of the imposed agreements.

Bill 148, retroactively to April 1, 2015, ends service recognition pay for retiring or resigning public-sector employees, and employees hired after April 1, 2015 will not be eligible for service recognition and pay. In the BC decision the court ruled in the union’s favor that government legislation could not strike things out of a collective agreement that had been previously bargained.

A statement of claim was filed at the Nova Scotia Supreme Court in December 2015. Essentially the nature of the court challenge is that it’s in violation of section 2D of the freedom of association for denying public-sector workers the right to collective bargaining.

Bill 37  – Nova Scotia’s Essential Health and Community Services Act Bill 37 was introduced in April 2014. A statement of claim was filed on September 12, 2014 with the Supreme Court of Nova Scotia and is still in the preliminary stages of the court process.

The Act provides for a broad definition of essential services, encompassing some 35,000 public employees who work in a range of occupations, including nursing, hospital support workers, group home care, home care, ambulance dispatch and paramedic workers. It mandates that essential services agreements be negotiated prior to any strike action through a process that is heavily weighted in favour of the employer.

A union may apply to the Labour Board for arbitration if it feels that the level of employees designated essential is so high that it has the effect of depriving employees of the meaningful right to strike. If arbitration is granted, the Minister of Labour has the right to choose the method. However, whatever method is chosen by the Minister, the independence is undermined, as the arbitrator is forced to consider the employer’s ability to pay in light of the fiscal position of the government.

This legislation is similar to the 2008 Saskatchewan Public Services Essential Services Act which was ruled unconstitutional by the Supreme Court of Canada in January 2015. The nature of the court challenge is the violation of section 2 (b) freedom of expression and section 2 (d) freedom of association of the charter.  Bill 37 also violates section 15 as it has a discriminatory, adverse impact on employees on the basis of sex, as at this disproportionately affects women. Approximately 90% of the work affected by this legislation is done by women.

Bill 30 The Nova Scotia Essential Home Support Services Act was Implemented in March of 2014.  A statement of claim was filed on the 20th of May in 2014 to the Supreme Court of Nova Scotia and this challenge is still in the preliminary stages of the court process.

The legislation ended a two-day strike by some 500 home care workers and forced the workers’ unions and their employers to negotiate an essential services agreement prior to a strike or lockout. If the union and the employer are unable to agree on essential services agreement, the dispute will be referred to the Labor Board to settle the provisions of such an agreement.

The nature of the court challenge is that it’s in violation of section 2(d) of the charter, (home support workers’ right to bargain collectively), revoking their charter right to engage in the expressive activities associated with collective bargaining and the right to strike. Bill 30 also violates section 15 as it has a discriminatory and adverse impact on employees on the basis of sex as it disproportionately affects women. Approximately 90% of the workers affected with this legislation are women.




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