Monday 20 October 2014

Saskatoon Transit: Judicial review and a bit of statutory history

So the saga of the ongoing Saskatoon Transit contract negotiations continues.

Mayor Don Atchison has now said he wants to take the matter to judicial review, according to the CBC:
Atchison said the city solicitor told council they were on safe legal ground when the first lockout notice was issued just over four-weeks ago. If they didn't believe it was legal, he said they wouldn't have gone ahead with the lockout. 
He said he's asking for a judicial review of the Saskatchewan Labour Relations Board's decision that the first lockout was illegal. He does not know when the decision will come out.
Prof. Dionne Pohler, in an interview with the Saskatoon Star-Phoenix, had hoped (as I think did many of us) that the LRB ruling would promote fresh bargaining, not a continuation of hostilities.
University of Saskatchewan assistant professor Dionne Pohler applauded city council's decision [to end the lockout].
"I have to say I'm very pleased. It shows the city is willing to take a step forward. I would hope the union would respond accordingly," said Pohler, who specializes in labour-management relations.
She said it's hard to tell whether this means an agreement is any closer. There could be a deal at any time, but there could also be more job action from either side.
She said there had been an escalation of resentment and a souring of relationships in the past month, but the weekend's events could cause everyone to take a fresh look at the issues.
But it looks like the City intends to pursue further litigation, which is too bad.

I won't repeat my previous discussion about the relevant sections of The Saskatchewan Employment Act except for a quick reminder that the lockout was declared illegal because there was an application "pending before the board" when the lockout notice was given, and that's forbidden under the SEA.

Keep in mind, however, that this provision is neither "pro-union" nor "pro-employer". Both sides are prevented from imposing a lockout or changing terms and conditions of employment (employers) or from striking (workers). On the other hand, most applications are brought by unions, and most industrial action is in the form of a strike rather than a lockout, so this limitation may actually hamper unions, in the big picture, more than it would hamper employers.

Also keep in mind, again, that these situations just don't come up that often. This has been a dramatic couple of weeks, but it's pretty rare for a situation like this to arise.

That said, here's a fun fact: the sections that prevent a strike or lockout while "any application is pending before the Board" - s. 11(1)(j) and 11(2)(b) of the old Trade Union Act, and s. 6-62(1)(l) and 6-63(1)(b) of the new Saskatchewan Employment Act - have been before the Legislature at least twice before, when revisions to the legislation were being considered, and both times, the provision was left "as is".

In 1993, the "Priel Committee" compiled the "Report of Committee Considering Proposed Amendments to the Trade Union Act." This was after the NDP had returned to power, and was considering changes to the old legislation. At that time the Committee noted:

Sections 11(1)(j) and 11(2)(b) make it an unfair labour practice for an employer and a trade union respectively to lockout or strike while an application is pending before the Labour Relations Board. Business takes the view that pending applications may have nothing whatsoever to do with the matters in dispute which give rise to a potential strike or lockout and can be the subject of abuse. Business takes the view, therefore, that section 11(1)(j), section 11(2)(b) and section 11(3) of the Act should be deleted.
[Emphasis added. Pages 44-45 of the Report, cited in CUPE's submissions in 2012, referenced below.] 
Okay, in 1993 employers wanted the provisions gone. The language wasn't changed. Then, in 2012 with a Conservative government in power (okay, fine, "Saskatchewan Party"), Saskatchewan undertook a new consultation process regarding changes to labour legislation. And lo and behold, in the Canadian Union of Public Employees' submissions to the government, what do we find? The above paragraph from the Priel Report. Oh, and:
 We observe that the filing of unfair labour practices can be used as a manipulation of the other parties' rights. A union expecting to be locked out or the employer expecting to be struck can file a complaint. This would then prevent the respondent's access to their statutory rights in a way that defeats rather than advances collective bargaining. ...
...CUPE supports a refinement to this provision that would limit its application. CUPE proposes an exception to sections 11(2)(b) and 11(1)(j) so that they do not include LRB proceedings commenced under any part of Section 11.
(CUPE submissions, p. 139-140, full document here)
 Remember this is a union putting this forward. I won't comment on whether I think CUPE's proposals would be a good thing or not; that's a question for another time (...or for a future blog post, maybe).

Now, given the Saskatchewan Party's general lack of love for the labour movement (and for collective bargaining overall), I rather suspect that CUPE's submissions were given little consideration and that the "consultation" was more of a fig leaf for the government than anything. In fact, given that (as I mentioned above) these limitations may affect unions more than employers, the SaskParty may well have decided they like having these provisions. But, still, the government had again been told by at least one party: these provisions are in the legislation. You can change them.

Once again, no change. The Saskatchewan Employment Act was proclaimed in 2013. Ss. 11(1)(j) and 11(2)(b) of the TUA became ss. 6-62(1)(l) and 6-63(1)(b) of the SEA.

If the City pursues judicial review of the LRB decision, the question will be whether the LRB's interpretation of the SEA was "reasonable". In my view, it was (though I hasten to add we still don't have the Board's written reasons for why it ruled as it did). The Board has the jurisdiction, responsibility, and expertise to interpret its governing statute. It's owed deference in its decision. And in my view, finding in the City's favour would have flown in the face of the plain language of the legislation, and would have flown in the face of the fact that the Legislature has apparently - at least twice - refused to change the section in question.

Whether ss. 6-62(1)(l) and 6-63(1)(b) are good or bad for labour relations is not the point. That's for the Legislature to decide. And the Legislature has decided at least three times  (in 1944 when it proclaimed The Trade Union Act, 1944; in 1993; and in 2013) that these sections were to stay. It should be up to the Legislature to change them.

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