Tuesday 21 October 2014

Saskatoon Transit: A Response to the Star-Phoenix's editorial.

In an op-ed piece today, the Saskatoon Star-Phoenix opined  on not only the city's "convoluted" response to the lockout and to media questions, but also on our old friend, s. 6-62(1)(l) of The Saskatchewan Employment Act which I've blogged about previously. The Star-Phoenix says, among other things:

This section of the employment act, which was the board's basis to deem illegal the lockout and council's changes to ATU's defined-benefit pension plan, warrants a rethink by the government. The provision would seem to open the door to employee groups engaged in contract talks filing trivial complaints with the LRB as a way to hamstring employers, especially when it takes the board months to issue a decision.
I'll say at the outset that I actually do think the provisions need a rethink, but I also think that the concerns raised by the Star-Phoenix are a bit one-sided. For a start, remember that s. 6-63(1)(b) puts a corresponding limitation on unions' ability to strike, so this would also allow - to use the S-P's words - "employers or employer groups engaged in contract talks filing trivial complaints with the LRB as a way to hamstring unions..."

As I've mentioned previously, these are at best "equal opportunity" restrictions. At worst, they actually affect unions more than they affect employers. I think there's an unfortunate tendency in this case to portray the legislation as somehow "pro-union", because in this case it worked to the Amalgamated Transit Union's advantage. But to somehow suggest that those awful unions might abuse the terms of the SEA to their advantage, without mentioning that employers might do the same, seems a dubious and troublesome omission.

That said, I think the S-P's concerns are also exaggerated, for the following reasons.

First, this provision has been in the SEA and its predecessor, The Trade Union Act, since 1944. That's 70 years, and while hypothetical concerns have consistently been raised about these statutory restrictions, they've always, it seems, been just that - hypothetical. No flood of abusive or frivolous Unfair Labour Practices appears to have occurred. And, indeed, there doesn't seem to be any suggestion in this case that the ATU filed their application to defeat a potential lockout. (That's not to say they didn't, but I've seen no evidence or argument to that effect.)

Second, the Labour Relations Board has control over its own process, and it can deal with frivolous applications expediently. Section 6-111 (1)(p) of the SEA grants the Board the power "to summarily dismiss a matter if, in the opinion of the board, there is a lack of evidence or no arguable case"; s. 6-111(1)(q) allows the board to "decide any matter before it without holding an oral hearing." Applications for summary dismissal are generally done via letter - a full hearing is not necessary - and the Board is able to dismiss frivolous matters just as the Courts can.

Third, remember that for these provisions to apply, a matter must be "pending". That means more than simply filed, in my view. The Board, in my opinion, would need to have at least started to consider the matter, but not yet given its decision. It would take a canny, even psychic, union (or employer) to file an application that would:
  1. Survive an application for summary dismissal;
  2. Be filed early enough that a preliminary or full hearing of the matter would commence; but
  3. Be filed late enough that the Board could not render a timely decision;
 all so that the other side's opportunity to strike or lockout would be delayed.

As the S-P points out, in this case the outstanding application was "pending" for several months. This is unusual, in my experience, though the Board does have six months (s. 6-116(1)) to render a decision.

Fourth, and finally, keep in mind that these restrictions don't just apply to the other side. They also apply to the party filing the application. "Any application", right? So a union that files an application to block a lockout - which is a bit of a paper tiger in any event - would also be blocking its own ability to take strike action.  (Heck, I remember early in my career being told not to file an Unfair Labour Practice application on behalf of a union, because that would interfere with the union's ability to strike. As I say, this provision has been around for a long while, and it goes both ways.)

And the ability to strike is much more important to a union's bargaining power than the ability to lockout is to an employer's.

These restrictions have been around, and been subject to criticism, for literally decades. This isn't a new argument, nor has the statutory language in this regard changed. That doesn't mean the language shouldn't be changed now; but it should be done in a careful and measured way, and in a manner that promotes better and more effective collective bargaining, not as a knee-jerk response just because it once happened to benefit a union.

I think I've drawn enough water from this well. My plan for the next (and probably last) blog post on this topic is to look at the reasons behind these provisions of the SEA - why we have them in the first place. And then, barring new developments on the judicial review front, I'll move on to other legal topics of interest. Gasp!

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