Happy Anniversary: The Constitutional Right to Strike

Happy Anniversary!

January 30 was the seven year anniversary of the Supreme Court of Canada’s decision to deem the Essential Services Law unconstitutional. This was a victory for organized labour and workers across Saskatchewan.

Background

It was a long battle that started in 2007 when the newly formed Sask Party government under Brad Wall created bill 5, the Public Service Essential Services Act (PSESA) that said that the employer could determine who and what was essential and who was allowed to strike. This allowed employers to eliminate labour’s ability to meaningful job action.

At the time, the Government backed up their decision, saying other provinces were doing it.

Saskatchewan Federation of Labour (SFL) launched a constitutional challenge where the trial judge found that the right to strike was protected by the Canadian Charter of Rights and Freedoms (which allows for the freedom of association) and interference with that was unconstitutional. The Saskatchewan court struck down PSESA in 2012.

The Labour movement won…temporarily.

The Government of Saskatchewan appealed the decision at the Saskatchewan Court of Appeal where it was determined that the PSESA did not violate freedom of association.

The SFL, affiliates and interveners like SEIU-West, appealed the decision at the Supreme Court of Canada. The Court observed that no other essential services legislation in Canada was without independent oversight of employer designations, or any effective dispute resolution processes. Our government was told it had a year to amend the legislation. After stalling, their new legislation was assented in November 2015. You can read that act here.

The Supreme Court of Canada’s decision stated: “It should come as no surprise that the suppression of legal strike action will be seen as substantially interfering with meaningful collective bargaining. That is because it has long been recognized that the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals (para 46).”

Current

We won the constitutional right to strike. So that’s good news, right?

Well…sort of.

That didn’t mean that we could continue the way we always had prior to the legislation. And new legislation for essential services was quickly introduced.

The Supreme Court of Canada dictated that there needs to be a third party mechanism for both parties to determine what tasks are essential if Employer and Union cannot agree. Previously, the employer had the absolute right to name individuals that they thought were essential – not necessarily what jobs or duties were essential.

As of yet, this new legislation has not been tested, so to speak, because the process to engage in any sort of job action while deemed ‘essential’ is incredibly difficult.

These are the steps we now need to take before we can perform job action:

• If one side of the bargaining table *thinks* there’s still room for negotiation, bargaining will continue.
• Once an impasse (a situation in which no progress is possible) has been reached, one party sends a notice of impasse to other party and ministry of labour. The notice needs to include what services need to be maintained, in their opinion.
• Three days later, the other party has to supply their opinion on what services need to be maintained.
• The Labour Minister appoints a Labour Relations Officer, Special Mediator or Board of Conciliation.
• The appointee has 60 days to meet with both parties to determine if differences can be settled. The appointee creates recommended terms of settlement and reports if a party doesn't accept the terms of settlement or if the the issues can't be resolved. They report their findings to the Minister of Labour.
• Then there must then be a 7 or 14 day cooling off period, depending on whether an essential services agreement has been negotiated.
• After that, if there is an essential services agreement of what tasks still get performed, there can be job action, provided they have given 48 hours notice.
• If there is no essential services agreement and if we've reached impasse, mediation is concluded and the cooling off period is done, we need to negotiate essential services. 
• Essential services: services the interruption of which would endanger the life, health or personal safety of the whole or part of the population.
• To negotiate essential services, both parties need to agree on which services are essential, the duties within each position that are necessary to provide essential services, whether the duties require members to perform them, what job classifications are needed to maintain those essential services and how many members need to be scheduled to work to maintain essential services.
• If an essential services agreement cannot be reached, either party can serve notice to the Saskatchewan Labour Relations Board so that an essential services tribunal will hear arguments from both sides. They have 60 days to decide essential services, unless the tribunal thinks they need more time.
• Even after an essential services agreement has been reached and job action has started, there are other hurdles that can be introduced, like if a party thinks something has changed that should result in changing of staff levels, they need to go back to the tribunal for the tribunal to make the decision on whether essential services can be maintained with the current levels or not. 
• If the union feels that their ability for meaningful job action is compromised, there are further tribunal options to deal with that as well.

 We did a three part series of what the steps would be to get to the point where we would “qualify” to legally strike.

1. Essential Services Part 1: Impasse 
2. Essential Services Part 2: Steps to Job Action 
3. Essential Services Part 3: Essential Services Agreement 

The amended essential services law laid out that if members go on strike illegally or if anyone attempts to stop essential employees by having them go on strike, there are consequences. What consequences? Unions or representatives of unions would be fined up to $100,000 for initial offence and $10,000 for each day or part of a day that the offence continues. Any essential services worker that goes on strike can be fined up to $1000 for an offence and $400 for each additional day or part of a day.

Fourteen years after the introduction of Essential Services legislation and seven years after the amendment of the Essential Services legislation, both workers and unions are left frustrated with the process and workers across Saskatchewan have collectively seen the results with stagnant wages and understaffing. Our government has done all it can to make it difficult to bargain effectively. 

So, we won the constitutional right to strike, but we need to continue to push to make improvements in wages & working conditions and building on our rights in the workplace.