Friday 10 October 2014

The City of Saskatoon transit lockout, and why it may be illegal.

I decided this summer to start using public transit in Saskatoon. I made this decision primarily for environmental reasons; I'd moved further away from my workplace at the University of Saskatchewan and didn't want to drive every day. The fact that a monthly bus pass is cheaper than the cost of parking certainly didn't hurt. So much for saving the Earth - barely a month after I started taking the bus, on September 18, the City of Saskatoon issued a lockout notice to the Union representing transit workers.

The City said its lockout of its transit workers, who are represented by the Amalgamated Transit Union (ATU), was "carefully timed."  From the City's comments, it seems the goal was to push the ATU and its members into accepting the City's offer before the snow starts to fly. 

[City HR Director Marno McInnes' comments are here. ]

There's nothing wrong with that, in theory, of course. An employer is entitled to impose a lockout on its employees in the same way that workers are entitled to strike to strengthen their bargaining position. Strikes and lockouts aren't equivalent - an employer has numerous tools at its disposal to put pressure on a union, while a union's strongest (and often only) weapon is the ability to strike - but strikes and lockouts serve the same purpose, which is to put economic pressure on the other side to encourage them to settle.

Another factor here is that the City may have viewed a lockout as a necessary pre-requisite to City Council making changes to its municipal pension plan without negotiating with ATU. In Saskatchewan, an employer must negotiate to the point of impasse before it can make unilateral changes to terms and conditions of employment. A lockout isn't strictly necessary, but it's evidence that the parties are at an impasse. Under the new strike and lockout provisions in The Saskatchewan Employment Act, the parties can't issue a strike or lockout notice unless they are at a point of impasse in any event, so it's not clear that the lockout was necessary for this purpose. 

[Director McInnes again over here]

More importantly, though, the lockout may well be illegal, and so may be the City's unilateral changes to the pension plan. And the Union quickly brought an application before the Labour Relations Board, arguing exactly that.

On Sept. 26, 2014, the Labour Relations Board issued an interim Order (LRB File No. 211-14). That Order didn't end the lockout, but it did prevent the City from implementing any further unilateral changes to the pension plan. On October 14th, the City and the ATU are back in front of the Board to argue about the legality of the changes to the pension plan and to the legality of the lockout.

The Law

The language that potentially renders the City's actions illegal is the same now, under the new
Saskatchewan Employment Act ("SEA"), as it was under the now-repealed Trade Union Act. Section   6-62(1)(l)(i) of the SEA reads:

6-62(1)It is an unfair labour practice for an employer, or any person acting on behalf of the employer, to do any of the following:
(l) to declare or cause a lockout or to make or threaten any changes in wages, hours, conditions or tenure of employment, benefits or privileges while:
(i) any application is pending before the Board...

["Pending" means that the hearing of the application has begun but the Board has not yet rendered a decision, so an Employer or Union could not, for instance, file a frivolous application just to prevent a lockout or strike.]

Unfortunately for the City, there was an Unfair Labour Practice ("ULP") application pending before the Labour Relations Board when the lockout notice was issued. It appears the ULP was unrelated to the lockout - it related to discipline of a bus driver and was heard back in May - but the language in the SEA doesn't say a "related" application, or anything of the sort. It says any application. 

[Details on the outstanding ULP here]

In order for the lockout and the pension plan changes to be legal, the City has to convince the Labour Relations Board that when the SEA says "any application", the statute really means "any related application".  That flies in the face of the plain wording of the legislation. However, in fairness to the City's position, most of the time the ULPs in such situations are related either to the lockout itself, or to the collective bargaining process that was underway. The intention of s. 6-62(1)(l) is to ensure that employers don't "raise the stakes" on a ULP by trying to place economic pressure on a Union that has decided to pursue its rights before the Board. It's about protecting the integrity of the Board's process, and not allowing the rule of law to be undermined by economic power.

Still, the Board can't simply decide what it thinks the law should be. It's got to operate within the terms of the legislation that gives it its authority (the SEA). Without getting into the intricacies of statutory interpretation, the City would have to have some strong evidence that the Legislature somehow did not intend for the statute to mean what it says it means. That's not impossible. But the Union has in its favour the fact that the Legislature could have changed the language of the statute when it implemented the SEA - but didn't. 


So, what if the Board determines that the lockout is legal?

Obviously, the lockout will continue until the parties agree on a collective agreement. But such a decision would have implications beyond this specific case.

The thing is, this provision is one that goes both ways. Unions are under similar restrictions on strikes (s. 6-63(1)(b) of the SEA). So in this case, ATU would have also been prohibited from striking until the outstanding ULP was decided! If the Board rules that the lockout was legal, and that "any application" actually means "any related application", that will affect the ability of both employers and unions to engage in industrial action.

What if the Board determines that the lockout is illegal?

Just as workers who strike illegally can be ordered back to work, an employer who engages in an illegal lockout can be ordered to end the lockout and allow its employees to return to their jobs, probably with back pay for the time they were illegally locked out. But because the outstanding ULP has now been resolved, the City could simply re-issue the lockout notice. It would, I'm sure, be an embarrassment to the city, and it may further damage an already difficult collective bargaining relationship, but the City could legally do that. On the other hand, the Union would now be in a legal strike position; they may take advantage of the opportunity.

With an experienced mediator from British Columbia in Saskatoon to assist with negotiations, the parties may yet resolve their differences. But if they don't, the Board will have to rule on the Union's application.

Ironically, had the City waited two weeks, there would have been no question that the lockout had been properly issued - because the outstanding ULP was decided on October 3, 2014. [The City lost that one, by the way.]


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