Saskatchewan court says essential services law is unconstitutional

By Jennifer Graham, The Canadian Press    | February 06, 2012

REGINA – The Saskatchewan government says it will fix its essential services legislation after a court ruled the law goes too far and is unconstitutional.

Justice Dennis Ball said the law infringes on the freedom of association of employees protected by the Charter of Rights and Freedoms.

“In my view the provisions of the … act go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike,” the Court of Queen’s Bench judge said in a written decision issued Monday.

The essential services legislation, along with the Trade Union Amendment Act, was introduced in December 2007 shortly after the Saskatchewan Party won its first provincial election.

The legislation says employers and unions have to agree on which workers are so needed they cannot walk off the job. Unions were outraged when it passed because the law also states that if the two sides can’t agree, employers can dictate who is essential.

Ball noted that every jurisdiction except Saskatchewan had essential services legislation. At a minimum, those jurisdictions prohibit strikes by police officers and firefighters. All except Nova Scotia also prohibit, or at least significantly curtail, the right of hospital workers to strike, he said.

The lack of a law meant unions in Saskatchewan had “unrestricted power to unilaterally decide” what services, if any, would be provided during a strike.

Ball acknowledged the government’s goal to ensure service as “pressing and substantial.”

But he also said “the deleterious effects of the … act substantially outweigh the public benefit it confers.”

“It is enough to say that no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly….” wrote Ball.

“No other essential services legislation is devoid of access to independent, effective dispute resolution processes to address employer designations of essential service workers and, where those designations have the effect of prohibiting meaningful strike action, an independent, efficient, overall dispute mechanism.”

Ball declared the act invalid. However, the declaration has been suspended for 12 months.

It’s now up to the government to change the law.

Justice Minister and Attorney General Don Morgan, who is also minister of Labour Relations, said the judgment upholds the principle of essential services legislation.

“We strongly support that our province remains committed to it for reasons of public safety. In issues of highway travel or staff in an operating room, we think it’s absolutely imperative that we have legislation that protects the public,” said Morgan.

“What the judgment seems to conclude is that we need to have a better or different method of dispute resolution.”

Morgan said Saskatchewan will look at what others provinces do and will also look carefully at whether it needs to appeal the decision.

Morgan said in the meantime unions will “be obliged to work under the existing legislation.”

The Saskatchewan Federation of Labour, representing about two dozen plaintiffs, had challenged the law. Federation president Larry Hubich called Monday’s ruling a landmark decision that protects workers’ rights.

“Justice Ball has said that it violates the charter and it can’t stand. And so (in) absence (of) something that’s fashioned that meets the constitutional obligations that governments have with respect to legislation, their right to strike has been restored,” said Hubich.

Hubich said it’s up to individual unions to decide how they will deal with negotiations until the law is fixed.

“The unions who have had to go through the process of engaging in collective bargaining to negotiate agreements that flow out of legislation that is unconstitutional, we would argue, could go to the courts and seek financial compensation for the costs associated with engaging in that process.”

Among other things, the federation argued in court that the government didn’t comply with its obligations under the charter by refusing to and failing to consult with unions before introducing the essential services legislation.

The government argued that it did consult.

Ball said that was not supported by the evidence and he added that any consultation with the unions about the act “was superficial at best.” But he also said the government didn’t have to consult.

“The Constitution does not prohibit legislation that rebalances the strength of parties at the negotiating table. What is unacceptable is the creation of a structure that infringes on basic freedoms protected by … the charter in a manner that cannot be justified….”

Ball dismissed the union’s challenge to the Trade Union Amendment Act. He said it does not infringe on the charter.

That act raises the written support needed for an application of certification or decertification of a union to 45 per cent from 25 per cent. It also makes voting on an application a mandatory secret ballot.

Unions argued it “swings the labour relations pendulum” towards employer interests at the expense of unions and workers. They argued the new requirements for certification are so onerous that they infringe on workers’ freedom to organize.

The government said the changes create a labour regime in Saskatchewan similar to other jurisdictions.

Ball noted that the increase in the threshold introduces the same minimum required in British Columbia and isn’t substantially higher than the 40 per cent needed in Ontario, Manitoba, Alberta, New Brunswick and Newfoundland.

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