Thursday 31 December 2015

2015 Roundup: What a Year it's Been

There are, needless to say, an enormous number of stories and cases that come out in a given year. I don't intend to even attempt to give a thorough or fulsome "year in review" here, but I would like to revisit some of the things I've posted about in 2015.

Essential Services Legislation

In labour law, the year started off with a bang when the Supreme Court released Mounted Police Association of Ontario v. Canada (Attorney General) (which declared that workers have a right to join an independent union), Meredith v. Canada (Attorney-General) (which upheld a government-imposed rollback on wage increases for RCMP officers), and Saskatchewan Federation of Labour v. Saskatchewan (which recognized that workers have a constitutional right to strike and struck down Saskatchewan's essential services law). It's still not clear what impact these cases will have in the long term, though Alberta, at least, engaged in consultation on a new essential services law in October, to bring its law in line with the standards set out in Saskatchewan Federation of Labour.

The Saskatchewan government also introduced amendments to The Public Service Essential Services Act (the Act which had been struck down in Saskatchewan Federation of Labour) which have since been passed by the Legislature (though the new legislation isn't yet in effect). The Saskatchewan Federation of Labour seems to approve of the new law. A summary by employer-side law firm Macpherson Leslie & Tyerman is here; union-side lawyer Greg Fingas discusses the new law here. Perhaps the best summary, though, is this tweet from Eric Adams at the University of Alberta:

That said, MPAO, Meredith, and Saskatchewan Federation of Labour were really just completing the legal journey that began in 2007 with the B.C. Health Services case, and B.C. Health Services, while undoubtedly significant, didn't send Canadian labour relations flying arse-over-teakettle. But unions are undoubtedly more assertive in challenging labour legislation in court; unions in Nova Scotia, for instance, will be launching a Charter challenge against the recently-passed Bill 148, The Public Services Sustainability (2015) Act, which restricts, among other things, wage increases in the public sector. We can expect further challenges to labour legislation, but I suspect (as I've said before) that the overall impact of the 2015 cases will be relatively modest.

Alberta: Bill 6

2015 ended with a bang, too, with much furor (including, apparently, death threats aimed at Premier Rachel Notley) over Alberta's Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, which extends to paid farm workers similar protections as other workers under workplace legislation: occupational health & safety, workers' compensation, labour relations, and labour standards. Bill 6 recently received royal assent on December 11, 2015, but with the significant amendment that the new protections found in Bill 6 will no longer apply to family members or unpaid workers.

(As an aside, I posted a while back about Bill 6 and that post got some traffic from a forum where people were discussing the Bill. The question of OH&S and WCB coverage for farm workers in Saskatchewan came up. Someone kindly posted a link to this blog as a source of information, but with the comment that "...but it's not very clear." A  humbling reminder.)

You said it,
As the Alberta Government's website states:

Who’s affected

Alberta farm and ranch producers with paid employees who are not the owner or related to the owner will be affected by Bill 6.

This means that family members can continue to contribute to farming operations as they always have, and neighbours can still volunteer to help each other out
Still, paid farm workers in Alberta will now probably have the most extensive protections of any jurisdiction in the country. (Though this will still be subject to regulations - which might limit the application of some provisions on farms.) As I mentioned back in November, in Saskatchewan we don't have mandatory WCB coverage for farms, nor are farm workers entitled to many labour standards. Ontario farm workers (including fruit pickers) can't unionize effectively under the misleadingly-titled Agricultural Employees' Protection Act. So it will be interesting to see how Bill 6 develops in 2016 as the Alberta government crafts its regulations.

Federally: Bill C-377 and Bill C-525

Federally, the new Liberal government has blocked, and has promised to repeal, the intrusive (and likely unconstitutional) Bill C-377, which would have required unions to disclose publically (not just to their members) employee salaries, donations to political and social causes, contracts with businesses or other organizations, amounts spent on legal fees and strike support...the list goes on. Bill C-377 was, like the Conservatives' pointless fight over niqabs at citizenship ceremonies, a mean-spirited jab at people and groups that the Conservatives seemed to feel were good political targets. And like the niqab ban, it had effectively no practical value beyond, I suppose, rallying the Conservative base. Professor Adams, again, suggested that the legislation ran afoul of the division of powers between the federal and provincial governments (it's ostensibly a tax measure - federal jurisdiction - but intrudes into the regulation of all unions regardless of jurisdiction); others have suggested that it will undermine solicitor-client privilege (since unions would have to disclose legal fees and, likely, legal representation), infringe upon the privacy of union employees and those dealing with unions, and violate the Charter protections of freedom of association and freedom of expression. Prof. David Doorey pointed out that it singled out unions for greater and more detailed financial disclosure (and, again, public disclosure) than other organizations such as charities. Bill C-377 is a bloody mess, legally, practically, and constitutionally, and should have died the usual ignominious death of a private member's bill. Thankfully, it's on the way out.

Bill C-525, which would have made it harder to unionize (and easier to decertify, i.e. de-unionize) for employees under federal jurisdiction, is also on the chopping block.

Locally: Saskatoon Transit

But in Saskatoon, the dramatic labour dispute between city transit workers and the City of Saskatoon (said dispute being the impetus to start this here blog) ended the year not with a bang, but with (kind of) a whimper: the City of Saskatoon and Amalgamated Transit Workers Union, Local 615, came to an agreement on the compensation owed to the workers who had been illegally locked out. But they still haven't agreed on a contract.

And on a non-labour-related note:

Trinity Western University

Meanwhile, Trinity Western University's quest for a law school continues. In January, the Nova Scotia Supreme Court declared that the Nova Scotia Barristers' Society could not deny accreditation to graduates of a TWU law school. That decision is currently under appeal. Then, in July, the Ontario Divisional Court upheld the Law Society of Upper Canada's decision not to approve accreditation for any law school at TWU unless and until TWU revokes its "Community Covenant" (at least as far as law students would be concerned). That's currently under appeal, too.

Then, a couple of weeks ago, the B.C. Supreme Court quashed the decision of the Law Society of B.C. to refuse accreditation to TWU law grads. No word yet from the Law Society on whether it will appeal.

Regardless, it seems likely that TWU's journey will be to the Supreme Court - again - especially if the various Courts of Appeal come to contradictory conclusions.

And that's it! A brief and limited, but hopefully interesting, year roundup. I didn't get a chance to use Anti-Union Ogre in this post, sadly, so I'll have to settle for this.

Thursday 3 December 2015

Citizenship and Disavowal: the Canadian Citizenship Oath

In 1989, I took the citizenship oath and became a Canadian citizen. The oath hasn't changed much, if at all, since then. Here it is:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
I admit, it didn't feel like that big a deal to me. I'd lived in Canada for fifteen of my seventeen years or so at that point; my accent was long gone; and I didn't remember Scotland at all, since I was about two-and-a-half when my parents moved back to Canada. Taking the oath was affirming what I already knew: that I was, for all intents and purposes, Canadian (albeit with an odd predilection for the pipes-and-drums).

(I saw the Maybole Pipe Band at Culzean Castle a couple of years ago. They were great. (From

I certainly wasn't keen on the monarchy, archaic and outmoded institution that it is, and affirming my allegiance to Queen Elizabeth II - even in her role as Queen of Canada, rather than Queen of the United Kingdom - rankled. I did take the oath, however. It wasn't a political or ideological hill I was going to die on at seventeen and, frankly, as a Canadian-in-all-but-the-paperwork by that stage, I'd long since accepted the anachronistic figurehead of my country. So I gritted my teeth, pledged my allegiance to Good Queen Bess, and became an official Canadian, no foolin'.

No hard feelings, I hope, Your Majesty. (

The citizenship oath made the news during the recent federal election, of course, in the case of Zunera Ishaq, and owing to the Conservative government's bone-headed decision to pander to Islamophobes. That issue, thankfully, appears to have been resolved and Ms. Ishaq was able to become a citizen. She, notably, took no issue with the oath itself; merely the requirement that she uncover her face while taking it.

Recently, though, the Oath made news again when Dror Bar-Natan, an immigrant from Israel, publicly recanted the portion of his citizenship oath that related to the Queen.In fact he's gone so far as to start up a website for those who wish to disavow that portion of their oath that refers to the Queen.

We at have no qualms regarding the second part of the oath, about the laws and the duties. The first and slightly longer part, about the monarchy, we find bitter to swallow, each for her or his own reasons. Hence each of us disavowed that part, in one way or another.

Dr. Bar-Natan specifically stated to the citizenship judge after completing the citizenship ceremony (according to 
I affirm my allegiance, my true allegiance, to Canada and to the people of Canada, yet I wish to disavow the royalty part, and only the royalty part, of the citizenship oath.

This, by the way, is perfectly legal. You can't gain citizenship without saying the oath. But you don't lose your citizenship if you, as Dr. Bar-Natan did, immediately recant that portion of your oath. (See e.g. McAteer v. Canada (Attorney-General), 2014 ONCA 578 (CanLII) at paras. 78-79. You can, in essence, take the oath with your fingers crossed. And then post on

Now, if I may quote Wikipedia here (the very thing I tell my students not to do), the Queen of Canada:

As the, legally and constitutionally, the personification of the Canadian state.
(Though see the comments of Professor Philippe Lagasse, below - it's not quite as simple as that, perhaps.)

And that's the line, more or less, that the courts have taken. You're not really swearing allegiance to a monarch, as such, you're swearing allegiance to our constitutional state. That the state is personified by the monarch is simply set out in our Constitution. If we wanted to become a republic and ditch the monarchy, we could do that. As the majority of the Federal Court of Appeal in Roach (1994) stated:

Against this constitutional background, the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect...The fact that the oath "personalizes" one particular constitutional provision has no constitutional relevance, since that personalization is derived from the Constitution itself.

The Ontario Court of Appeal in McAteer has also taken the position that any oath to uphold the laws of Canada implicitly means allegiance to the Queen and, therefore, a more generic oath would still have the same effect:
Because the Queen remains the head of our government, any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen. 
The courts, generally speaking, seem to approach this as self-evident; that those who complain about the monarchist portion of the oath misunderstand the oath; that such objections are somehow unreasonable. McAteer, again:

The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada, leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning.
Except that, it seems to me, they keep dancing around the issue that the oath is, explicitly, an oath to "bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada..." Yes, I'm basing this on a "literal plain meaning" interpretation. Perhaps we contract-lawyer types lack the poetic souls of constitutional scholars. We can dress it up in more legalistic or metaphorical terms, but I don't think it's unreasonable of people of strong religious (e.g. their allegiance is to God alone) or political (e.g. republican or anti-monarchist) beliefs to take umbrage at the oath's wording.

That doesn't, of course, render the oath unconstitutional. And legally speaking, such concerns may indeed by conscientious but also legally incorrect. Conscience can be visceral, and hasn't necessarily been to law school.

In 2002, Bryce Edwards (then still a law student, I think) argued in his article "Let Your Yea be Yea: the Citizenship Oath, the Charter, and the Conscientious Objector" (paras. 89-90):

It may be true that many of the objections a claimant raises can be met by careful definition of the meaning of the words "Queen Elizabeth" in the citizenship oath...However, it seems that adjusting the legal significance of the words is untenable...The words, in their plain meaning, indicate a person, Queen Elizabeth. The legal history of oaths of allegiance shows that they arose explicitly in order to bind the conscience of the individual to the sovereign, not to concepts...
It is far from obvious that the meaning of the oath has changed, given that the words have not. The oath taken today is nearly identical to one taken in 1689. Regardless of what judges say, the public and political nature of both citizenship and the citizenship ceremony means that the judiciary is hard-pressed to set the meaning of words in any authoritative way. Not only is it fairer to all involved that the words be given their clear, plain and popularly held meaning, it also is in keeping with the canons of statutory interpretation. The ceremony is more than just a legal one; it is a public ceremony, with personal, religious, social and political ramifications. In this light, the present wording of the oath falls afoul of the objections outlined above and is not saved by semantics.
The (perhaps less-than-careful) distinction between Queen-as-Queen and Queen-as-State drawn by the courts has also been addressed by Professor Philippe Lagassé, who has written extensively on the concept of the Crown, and in 2014 was generally in agreement with the Court's decision in McAteer - but with some caveats. (His blog makes for interesting reading, by the way.) As Professor Lagassé notes:

I am probably being unfair here, but I would have preferred to see a clearer statement that the Crown is the state and that the Queen is the legal personality of the state and the executive, not just symbols of the state and the executive. The distinction may appear trifling, but I’d argue that there’s an important distinction between the Crown and Queen as the state and the sovereign authority versus the Crown and Queen as symbols of the state and sovereign authority.
Nor, he adds, should monarchists be too quick to celebrate McAteer:

So why is this bad news for monarchist and royalists? Because the ruling could be read to mean that the Queen of Canada is a mere legal entity, one that happens to be linked to the British monarch but not necessarily so...
...The finding that the Queen of Canada and Queen Elizabeth II are not necessarily fused as part of the oath, moreover, fuels frustrations with Canada’s citizenship guide. The guide’s description of the oath and the role of the Queen in Canada arguably relies on the notion that the office of the Queen and the Queen as a natural person are synonymous. Weiler and Morgan, on the other hand, are saying that, for the purposes of taking the oath anyway, that’s not the case.

In any event, putting aside whether or not there is a necessary tie between the Canadian Monarchy and the British Monarch, it could well be that, as the Court stated in McAteer, any oath of citizenship is implicitly an oath to the Queen. But that said, if that's the case, then we don't actually need the Queen in our citizenship oath. A more generic oath, such as:

"I swear (or affirm) that I will be loyal to the Dominion of Canada, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.", accordingly, an implied oath to the Queen. Except that it seems that such an oath would be less distasteful to a number of people; nobody seems to be suggesting the rest of the oath is somehow offensive. (Though if you wanted to disavow the whole damn thing, you can do that, too.) So everybody's happy, right? Republicans and monarchists alike?

Australia, also still a Dominion, requires prospective citizens recite this non-monarchist pledge as part of becoming a citizen:

From this time forward, (under God),
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey.

However, when all is said and done, our courts have reaffirmed that the citizenship oath, as it stands, is constitutional. It will be up to Parliament to change the oath. So for now, for those who wish to become Canadian citizens but just can't bear to have an oath to a monarch (even an apparently  metaphorical one) on their conscience, there are two options. One, they can choose not to become citizens. Or two, they can speak the oath and then disavow allegiance to the Queen, as Dr. Bar-Natan recently did.

As for me, I have no intention of disavowing my citizenship oath, in whole or in part.

Still not a big fan of the monarchy, though.

Friday 20 November 2015

Farm Workers and Workplace Law

Alberta's farm industry will soon join the 21st century and farm workers will gain a variety of rights they did not formerly hold, including protection under occupational health and safety legislation, the ability to bring workers' compensation claims, and the right to unionize under Alberta's labour relations legislation.

These changes are contained in Bill 6, The Enhanced Protection of Farm Workers Act, currently before the Alberta Legislature. The Alberta government's summary of the changes can be found here. Jennifer Koshan of the University of Calgary provides an excellent commentary here (including numerous useful and illustrative links) on

The opposition Wildrose Party, predictably (it's their job to oppose after all), takes issue with the changes, insisting that "proper consultation" must take place - though they don't suggest what they might do differently in terms of farm workers' rights (other than, one supposes, not changing anything from the status quo).  The party appeals to nostalgia for the "family farm", despite farming becoming increasingly industrial and centred around large operations. 

Now, I'm not addressing one way or t'other whether 45 days is sufficient time to consult on these changes, either practically or constitutionally. But extending OH&S protections to the farm industry, at least, is not a new issue. Judge Peter Barley of the Provincial Court of Alberta, in a 2009 public fatality inquiry, recommended that OH&S be extended to paid farm workers, Alberta being  the last province in the country to grant those protections. Former Alberta Premiers Ed Stelmach and Alison Redford both promised to do so, but didn't deliver.

The other changes involve workplace provisions that are less universal across Canada; Ontario agricultural workers, for instance, have only limited rights to unionize under the anemic Agricultural Employees Protection Act; Saskatchewan farm workers have access to trade union legislation but aren't covered by workers' comp. Occupational health and safety coverage for farm workers, at the very least, would be a good first step - though extending only that protection does have some potentially interesting ramifications on workers' comp, depending on funding formulas, as set out below. Nonetheless, the coming changes (which may still change based on the consultation process) aren't new when one looks across the country.


Unlike Alberta, Saskatchewan farm workers are covered by occupational health and safety legislation - we don't have an exclusion for agricultural workers under Part III (OH&S) of The Saskatchewan Employment Act. Similarly, agricultural workers aren't excluded from the labour relations portion (Part VI) of the SEA, so they can certify a bargaining agent (i.e. unionize) under the SEA like other workers.

But  Saskatchewan can't be too smug in this regard. The Saskatchewan Employment Act still excludes farm workers - specifically, under s. 2-3, "those employees whose primary duties consist of actively engaging in farming, ranching or market gardening activities" - from most of its labour standards provisions, including those relating to overtime, vacations, and hours of work. (This exclusion, notably, doesn't apply to some of the more "industrial" types of agriculture such as egg hatcheries, greenhouses, commercial hog operations, and bush clearing - s. 2-3(2).)

And Saskatchewan still doesn't cover farm workers under its workers' compensation scheme. Section 3(1) of our Workers' Compensation Act, 2013 states:
This Act applies to all employers and workers engaged in, about or in connection with any industry in Saskatchewan except:

(a) the farming or ranching industry...
 This is despite a 2011 report commissioned by the government that recommended that agricultural workers be included under workers' compensation; or, rather:
Recommendation 1: The Workers' Compensation Act, 1979 apply to all employees in Saskatchewan with no exclusions. (p. 10)
When The Workers' Compensation Act, 2013 replaced the 1979 Act, however, the exclusion remained. Farming and ranching employers can choose to join the scheme and pay in to workers' compensation, but they're not required to. (And I suspect uptake is quite low; one article suggests that  voluntary WCB coverage in Alberta's agriculture industry is only about 3.3%.)

There are, by the way, a large range of workers who remain excluded from our WCA, as set out in The Workers' Compensation Act Exclusion Regulations, 2014. This includes such diverse industries and occupations as commercial fisheries, dairy farms, clergy, circus performers (!), door-to-door salespeople, "sports players" and, needless to say, academics. For some, there may be easily identifiable reasons. But for agricultural workers, it seems to be mostly historical - despite the fact that, as the 2011 report mentioned above states at p. 8:

Less than one-eighth of Saskatchewan’s working population live on a farm, but the agricultural sector accounts for over one- third of all work- related fatalities. Looking at the severity of injuries, each year over 200 injuries occur in the agricultural sector that are serious enough to require hospitalization

It's not all one-sided, naturally. WCB coverage means that farming operations who employ workers  will need to pay WCB premiums, though those premiums are tax deductible. Interestingly, in 2011 at least, the OH&S department was funded through Workers' Compensation. In other words, agricultural workers received the same protections under OH&S as other workers, but their employers did not have to pay WCB premiums and, therefore, didn't contribute to paying for those OH&S protections. I must admit I don't know if this funding formula has changed, but it's another interesting wrinkle. The Committee of Review, again, at p. 8:

OHS does try to provide some safety services in this excluded sector and spends over $50,000 per year on a media campaign and safety guide for agriculture and ranching. However, the high injury and fatality rates imply limited effectiveness for these efforts, the cost of which, like all OHS expenditures, is borne entirely by employers’ premiums in WCB covered industries. Many employers in agriculture do not pay for any of the publicly delivered safety or prevention services they receive. The high injury and death rates indicate that more such services are needed. Employers now covered by WCB should not be asked to pay for services in sectors that do not themselves contribute. This creates the perception of unfairness.
Furthermore, as an employer, if you're not covered by workers' compensation legislation, injured workers can sue you if the injury was a result of your negligence. This is the trade-off under the so-called "Meredith Principles", upon which workers' compensation is based: employers collectively  share the cost of funding the compensation system, in exchange for being immune from potentially damaging lawsuits and court actions in the event of a workplace injury. Now, it's possible that there may be liability insurance available, and maybe farm employers are content with the fact that litigation is expensive enough that most people won't sue. But, again, this isn't an easy or one-sided question.

And, finally, exclusion under the WCA isn't tied to the size of the farm. It doesn't matter if you're a small family operation or a massive farming concern.

However, I think it's safe to say that the question of workplace rights for workers is not as simple as "big government vs. the family farm".


That said, there are certainly those who do think this is "big government vs. the family farm" or even "unionized workers vs. the family farm". I would be remiss if I did not mention that, in addition to its stated concerns about consultation (which may have some validity), the Wildrose Party has engaged in the expected anti-union histrionics. Said Wildrose Party MLA Wayne Anderson:
"It's very disappointing that they have not gone out to the stakeholders and had conversations with the farmers and the farming community. It's really unfortunate because they've gone to their union people first, and asked them about it. And of course the W-C-B (Workers Compensation Board) and the O-H-S (Occupational Health & Safety) are looking to add more to their payroll, you know more unionized employees, but unfortunately the farmers and the farming community has yet to be included in any conversations with this government."

I'll just leave this here.

Wednesday 7 October 2015

The (Non-)Right of Employers to be Non-Union

 [This post sat in the Drafts folder for a good long while - this blog has been much-neglected - but I hope to get it back up and running.]

The issue of an employer's right to remain non-union has been in the news recently. In Nova Scotia, Egg Studios (in the midst of a bitter labour dispute with IATSE Local 849) stated in an opinion piece that:

We have the protected right, under the Charter of Rights and Freedoms, to remain union-free. However, interpretive laws designed by overzealous labour experts make it difficult to enjoy that freedom. We are hamstrung by our own success, vilified by those who whisper angelic phrases at night, and steal our businesses in the day.
I've got no horse in the race as to whether Egg Studios is union or not, but I'm not clear on what Charter right Egg Studios bases this claim. Freedom of conscience...maybe? It's not freedom of association; bargaining with someone isn't "associating" with them, unless you define "association" so broadly that it becomes meaningless.

Certainly not a Charter right to property. We (unlike the Americans) don't have constitutional protection of property rights, though property rights do have a quasi-constitutional status under Canadian law and do have explicit protection under a variety of provincial legislation. (As an aside, did you know that Alberta has a property rights advocate? I sure didn't.)

But even if we did, those rights aren't being affected - at least not directly - by the requirement to bargain collectively.

In Ontario, furniture manufacturer Gingrich Woodcraft shut down operations after its workers voted to unionize.  Why? Because, said the company, its owners are Christians and their religion teaches them not to engage in collective bargaining.

...Well, that's not quite how they phrased it. Specifically, the company said (from the CBC article, above):

"We are required by scripture to 'live peaceably with all men,' and not to use force to gain what we want or for what is required to succeed."
 Why that means they can't bargain with a union, well, I don't know. I suppose this means that they're opposed to strikes and lockouts, but...have they never fired an employee? Have they never had to negotiate a contract with an employee? Have they never had to renegotiate a contract when a valuable employee demanded a raise? It's not like the common law, individual, contract of employment is free of conflict. But in most cases, it does give the employer significantly more bargaining power than the employee.

Why is this an issue? Well, most labour relations statutes make it an unfair labour practice for an employer to interfere with selection of a union. The Saskatchewan Employment Act, for instance, sets out as follows, among other possibly relevant provisions:

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:
 (a) subject to subsection (2), to interfere with, restrain, intimidate, threaten,
or coerce an employee in the exercise of any right conferred by this Part;...

 (g) to discriminate with respect to hiring or tenure of employment or any term or condition of employment or to use coercion or intimidation of any kind,including termination or suspension or threat of termination or suspension of an employee, with a view to encouraging or discouraging membership in or activity in or for or selection of a labour organization or participation of any kind in a proceeding pursuant to this Part;...

(i) to interfere in the selection of a union;

(k) to threaten to shut down or move a plant, business or enterprise or any part of a plant, business or enterprise in the course of a labour-management dispute;

(n) before a first collective agreement is entered into or after the expiry of the term of a collective agreement, to unilaterally change rates of pay, hours of work or other conditions of employment of employees in a bargaining unit without engaging in collective bargaining respecting the change with the union representing the employees in the bargaining unit;
Note that (k) is about threats to close or move an operation - not the actual closure itself. Of course an employer can shut down or move its operations if it so chooses; but if it does so to avoid unionization - which Gingrich clearly has done - then that's a problem.

But beyond that, it's pretty clear that firing someone for union activity - which is what Gingrich Woodcraft has done to its employees - is clearly meant to interfere with the workers' exercise of their rights (i.e. their right to form a union).

Even the Globe & Mail, hardly a bastion of labour activism, weighed in suggesting that Gingrich Woodcraft "doesn't have a prayer". And the G&M's probably right - the Ontario Labour Relations Board has previously held that an employer has no right to remain non-unionized, as an employer is obviously not required to join the union: Labourers’ International Union of North America, Local 1059 v. Roger Good, 2010 CanLII 47146 (ON LRB).

Still, why wouldn't an employer have a right to remain non-union? Well, the practical reason is pretty obvious: a lot of employers, faced with unionization, would no doubt find a deeply-held (perhaps previously unknown) conscientious belief that unions are somehow morally wrong - the number of born-again Objectivists would no doubt skyrocket. But on a more principled level, the right to unionize is a worker's right; the default under our system is a non-union workplace, so workers have a right to change that under trade union legislation (and now, following Mounted Police Association, under the Charter too, it seems). Employers may not be enthusiastic about negotiating with a union, but a right to remain non-union (putting aside the various techniques employers can use to defeat organizing drives) undermines the entire system.

And it's difficult to see how being obliged to negotiate with a collective bargaining agent instead of individual employees offends a Charter, or indeed any, right. "I don't want to pay my employees more" or "I don't want my employees to have a say in their working conditions" are hardly cries that will inspire people to man the barricades. Though they will perhaps inspire people to look for convenient legal excuses or justifications to avoid unionization.

Monday 25 May 2015

Unions on the Hill 2: Union space and parliamentary bylaws

Right, so. Last time I discussed the prevalence of "union space" clauses in collective agreements. I also mentioned that the Liberals and Conservatives believe - or say they believe, at least - that such a clause runs afoul of Parliamentary bylaws preventing the use of caucus space for the "benefit" of a person or organization.

For reasons that follow, I think the Liberal and Conservative argument here is nonsensical. To interpret the provision as strictly as these parties suggest would disallow any number of otherwise entirely proper uses of caucus offices.

Now, again, I'm not suggesting that one can cloak otherwise illegal or improper activity under a "union space" clause. But I've seen no evidence presented that UFCW Local 232 or the federal NDP are doing anything improper with the office space granted - other than, apparently, granting it in the first place.

The Language in the Bylaw

Recall the Bylaw itself:
7(1)...a Member may not use funds, goods, services and premises provided by the House of Commons for the benefit of any person, association or organization, or for the promotion of a product, service or event of any person, association or organization.

If we take the Liberal and Conservative interpretation of the Bylaw, the Bylaw serves to prevent any union space clause being in any collective agreement on the Hill. It wouldn't just prevent a union office. It would, using this same reasoning, prevent a union bulletin board (that's using "premises" for the "benefit" of a person (the workers) or an association (the union), after all) or, for that matter, preventing union representatives from meeting with their members within the workplace at all (again - using "premises" for the "benefit" of the workers within the workplace).

For that reason alone, in my view, the Liberal/Conservative line here is absurd. The intention of the Bylaw is to prevent influence-peddling and diversion of Parliamentary resources for private benefit. UFCW 232 - that represents federal NDP office staff - has its own offices off the Hill. The Local represents staff of the federal NDP across the country - not just in the House of Commons.

But it goes further. What about, for example, occupational health and safety committees, which employers are required to maintain under the Canada Labour Code? If they meet within the offices of the party, isn't that using "premises" for the "benefit" of people working in the workplace? (Lest you think the comparison is a stretch, keep in mind the Code also imposes statutory requirements upon employers, such as requiring them to abide by collective agreements and to recognize and bargain with their employees' union of choice.)

Union representation is - or should be seen as - just as much a part of the legal landscape of working life as is occupational health and safety legislation. But the Liberals and Conservatives (neither of whom, of course, have unionized staff) seem to view a union chosen by a group of workers as somehow foreign; unwelcome; improper. And the interpretation these parties put forward regarding this parliamentary bylaw seems far too narrow and completely misses the logic and purpose of labour relations in a unionized workplace.

I mean, really, it seems to keep coming back to our old friend Ogre.

What about the Charter?

Following Mounted Police, Saskatchewan Federation of Labour, and B.C. Health Services, labour rights have finally been granted "constitutional benediction" - to borrow a phrase from Justice Abella in Saskatchewan Federation of Labour. Surely preventing a union from meeting with its members, maintaining a bulletin board, or having an office within the workplace - all of which would contravene Parliamentary bylaws, if you believe the Liberals and Conservatives here - must violate the Charter?

Well, yes, probably. While it could certainly be argued that workers can engage in "meaningful collective bargaining" without a union space clause, I think the stronger argument is that the message forbidding union space sends - telling workers that their union is not allowed to communicate with them within the workplace - is a much greater affront to labour rights than it might at first appear.

But that's not the end of it. Because we're talking about a union space clause in the House of Commons, we have to deal with the question of Parliamentary privilege - the idea that Parliaments and Legislatures can make certain decisions without fear of judicial review. So, for instance, the right of a Legislature to forbid television cameras was not subject to review by the Courts. Parliamentary privilege is not unlimited, but it extends pretty far - to anything necessary for the functioning of Parliament. Labour relations may well fall under that category - meaning that the Charter might not apply if Parliament chooses to forbid union space clauses.

This isn't a topic I feel particularly qualified to write about, so I'll just say that Parliamentary privilege might apply here. But as one constitutional scholar I canvassed noted, it's not the end of an issue just because that issue's not subject to Charter analysis. Hopefully sound labour relations policy and sensible politics will prevail in this case.

Tuesday 5 May 2015

Unions on the Hill, Part 1: "Union Space" clauses

The New Democratic Party of Canada's political staff is unionized, and the employer (i.e. the NDP) provides office space for their staff's union, pursuant to a collective agreement between the parties - what I'll call a "union space" clause. It doesn't appear that extra office space is granted by Parliament for this purpose - the union office seems to be within the Leader's office space - though I stand to be corrected on that point. And this is only an issue for the NDP, as none of the other parties (including the Greens and the BQ) have unionized staff.

The federal Liberal Party's house leader, Dominic Leblanc, takes issue with this collective agreement clause, saying a union space clause somehow "blurs lines" on the Hill. The Conservatives have piled on, filing a complaint with the parliamentary Committee on Internal Economy (the meetings of which are generally held "in camera"). Several unions have fired back in response to the Liberal and Conservative criticism, as has the NDP itself.

It all combines to make this sound very controversial. From a labour relations standpoint, it isn't. Union space clauses are incredibly common. I'm more surprised when a collective agreement - regardless of the employer - doesn't have a union space clause of some sort.  But that is, of course, not the whole story. We have to consider Parliamentary bylaws and, possibly, the question of Parliamentary privilege. But that's for next time.

For today, we'll deal with the labour relations aspects of this tempest in a teapot.

The relevant clause of the collective agreement in question, between the federal NDP and its parliamentary staff, apparently reads as follows:

Caucus will provide office space for CEP Local 232.
I say "apparently", by the way, simply because the collective agreement isn't readily available online, as far as I can see, so I'm quoting from the CTV news story linked above.

NDP national staff used to be represented by the Communications, Energy and 
Paperworkers Union Local 232.  They're now represented by United Food and 
Commercial Workers, Local 232 (from

This shouldn't even be an issue. It's very common for unions to negotiate "union space" clauses in their collective agreements. In some cases, it's merely a bulletin board that's to be used exclusively for union postings, such as in this collective agreement between SEIU-West and Canadian Blood Services:

18.01The Employer shall provide the Union with a bulletin board for the exclusive use of the Union. This bulletin board shall be placed so that employees covered by this agreement shall have ready access to it. The Union shall have the right to use this space to post notices of meetings and any other notices as may be of interest to the employees. All notices posted shall bear the signature of a Union official.
In others, as with my own union (the University of Saskatchewan Faculty Association), it extends to office space and meeting space:
 10.5.1 The Employer agrees to provide the Association with reasonable office space, adequate telephone service, and reasonable use of the internal postal service of the University. A charge will be levied by the University for telephone and external postal services that are not otherwise paid for by the Association.
 10.5.2 The Employer shall provide the Association, free of charge, with suitable meeting rooms on the Employer's premises for the conduct of Association business subject only to normal scheduling requirements and the payment of any extra costs that may be incurred in making special arrangements
(That's from our last Collective Agreement, found here if you're interested; but the current version has similar language.)


Or it can include both, as in this agreement between the Canadian Union of Public Employees and Saskatchewan Association of Health Organizations:

37.06 The Employer(s) agrees to provide the Local of the Union with office space (where possible), the size and location of which shall be discussed between the Local of the Union and the Employer.
37.07 The Employer(s) shall provide bulletin board(s) which shall be placed so that all Employees will have ready access to them and upon which the Local of the Union shall have the right to post notices of meetings and such other notices as may be of interest to the Employees.

The reasons for such clauses are pretty obvious. They allow the union to communicate openly and freely with union members in the workplace. It's also a recognition that the union has a right to be there; that the workers' choice to be represented should be respected by the employer. And of course once it's in a collective agreement, the employer is contractually obliged to comply with the clause.

A union's use of bulletin boards and union space isn't unlimited - you can't hide behind a union space clause if you post defamatory material, for instance - though unions are generally given some latitude in how they choose to use them.

Over and above the union space issue, it's also very common for NDP staff to be unionized. For example, the Saskatchewan NDP's staff is represented by the Canadian Office and Professional Employees Union, Local 397). The B.C. NDP's staff is represented by the B.C. Government Employees' Union.

(Indeed it's common for union staff to have their own union (COPE 397 also represents staff at the University of Regina Faculty Association as well as staff at Service Employees' International Union here in Saskatchewan; staff at SGEU were represented by the Communications, Energy, and Paperworkers Union, Local 481 - now represented by UNIFOR 481, following a merger of the CEP and the Canadian Auto Workers).)

And that's an important point, I think. NDP staffers and union staffers may work for union-friendly employers (ostensibly), but they are still workers and employees. They can have disputes with their employers, just like in any workplace. They sometimes need help with harassment complaints or workplace conflicts, just like in any workplace. They may file grievances. Sometimes they go on strike (for example staff at the Saskatchewan Government Employees' Union struck in 2007; there was some suggestion back in 2010 - though I haven't found further confirmation beyond a single "scuttlebutt" news article - that B.C. NDP constituency assistants took a strike vote in 2010).

When they unionize, these workers and employees get the same rights (subject to some limitations such as essential services legislation) as every other unionized worker - to organize, to collectively bargain, and to strike, as we saw in Mounted Police Association, B.C. Health Services, and Saskatchewan Federation of Labour - which includes the right to, if they choose, collectively bargain for union space. That's true whether the union is public or private; whether the employer gets its funding from government or not.

And I'm not suggesting union space clauses are, or should be, somehow mandatory; only that it's problematic to forbid  a union and employer from negotiating one.

Notably, there doesn't seem to be any suggestion that either UFCW Local 232 or the NDP have used the office for improper purposes. Rather, the Liberals and Conservatives are complaining that the union has union space within the workplace at all. This is also an important point, as I don't wish to be seen as giving either the union or the employer carte blanche to do whatever they want with the space. I'm assuming here that the office is used for exactly the purpose intended - to facilitate union communication with and representation of its members within the workplace.

But that's not the end of the issue. In labour relations a "union space" clause is entirely uncontroversial. It shouldn't be controversial here, either, in my view, but the Liberals and Conservatives believe (or at least they are alleging) that this violates a clause within Parliament's member Bylaws:
7(1)...a Member may not use funds, goods, services and premises provided by the House of Commons for the benefit of any person, association or organization, or for the promotion of a product, service or event of any person, association or organization.
 ...And that's what I'll be addressing next time.

Friday 6 March 2015

A few brief thoughts on the "notwithstanding clause" in labour law.

Saskatchewan's Premier is prepared to use the "notwithstanding clause"- section 33 of The Charter of Rights and Freedoms - to prevent constitutional review of his government's essential services legislation. That was a month ago, and again this post is a bit dated.

To be honest, I was waiting to see if the federal government was going to use the notwithstanding clause in its return-to-work legislation regarding the CP Rail strike last month, but that legislation seems never to have hit the floor of the Commons.  (Strangely enough, the government didn't seem as eager to intervene in a CN Rail lockout around the same time. While the CP Rail strike - called by a union - showed a "reckless disregard" for the economy and Canadians, said the Minister of Labour, I didn't see similar rhetoric from the Minister on the CN lockout - imposed by an employer. Why that is, I leave to the reader's speculation.)

Whatever you may think of the Premier's reasons for or the merits of using the notwithstanding clause, it does suggest that recognition of the right to strike may re-start a debate around s. 33 that started in Saskatchewan in 1986 and ended almost as soon as it began.

Section 33 reads as follows:
 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
 (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
 (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
 (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
 (5)  Subsection (3) applies in respect of a re-enactment made under subsection (4).
Section 33 only applies to (as you can see) sections 2 and 7 to 15 of the Charter. Because that list includes the fundamental freedoms under section 2 (conscience, religion, expression, assembly, association), and because The Public Service Essential Services Act violated s. 2(d) - freedom of association - the notwithstanding clause does have potential application.

It wouldn't be the first time the Saskatchewan government has used the notwithstanding clause. In 1986, the Conservative government of the day introduced The SGEU Dispute Settlement Act (S.S. 1984-85-86, c. 111)(the "SDSA") to end a four-month strike by the Saskatchewan Government Employees Union. The Saskatchewan Court of Appeal had recently ruled that return-to-work legislation regarding the province's dairy workers had infringed those workers' right to strike (though the Supreme Court subsequently reversed that decision as part of the infamous Labour Trilogy) so the SDSA invoked the notwithstanding clause in s. 9 - in fact, the government invoked two notwithstanding clauses:

9(1) pursuant to subsection 33(1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding the freedom of association in paragraph 2(d) of the Canadian Charter of Rights and Freedoms.
(2) This Act operates notwithstanding The Saskatchewan Human Rights Code, particularly section 6 of that Act.
The first, obviously, is what most people think of when one mentions the "notwithstanding clause." But Saskatchewan also has fundamental freedoms within its Human Rights Code, including freedom of association:
6 Every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.
Section 44 of the Code is the provincial "notwithstanding clause" - allowing legislation to operate even if it violates the Code.

The legislation did much more than order an end to the strike. It imposed a collective agreement on government workers (s. 7), imposed fines on workers who refused to end the strike (s. 8), and even declared that employees refusing to end the strike could be dismissed for cause (s. 8(5)). But no constitutional review of the legislation was possible - which probably didn't change much, given the results in the Labour Trilogy, specifically the "Alberta Reference", where the majority stated with almost breath-taking brevity (the majority decision is a mere four paragraphs long, though admittedly it makes reference to and approves Justice McIntyre's much longer reasons) that the rights to collectively bargain and to strike were entirely unworthy of constitutional protection.

John Gormley, perhaps predictably, figures use of the "notwithstanding clause" is a sound strategy regarding The Public Service Essential Services Act. Professor Dwight Newman here at the College disparages SFL v. Saskatchewan as the court "gone astray" and suggests SFL may actually "trigger a process of reducing the role of the Supreme Court of Canada in constitutional interpretation", by encouraging governments to make use of s. 33 in back-to-work legislation.

As far as Prof. Newman's point, it seems to me that prior to SFL - or at least prior to 2007's B.C. Health Services decision, anyway, when unions started to press their luck in court more - there was no constitutional litigation regarding [EDIT: right-to-work] return-to-work legislation because, in the Labour Trilogy, the Court had firmly quashed any hope that s. 2(d) might serve as a "brake" on government over-reach in that context. The idea that there's a real distinction between a world where governments pre-emptively use s. 33 to prevent judicial review of back-to-work legislation, and a world where there's no constitutional review of back-to-work legislation because there's no right to strike at all, seems a bit academic.

But that's regarding return-to-work legislation, which by its very nature is temporary. Using it to insulate a permanent piece of legislation like the PSESA is a different matter - the notwithstanding clause has to be renewed in five years and a change in government means potentially that the s. 33 over-ride will lapse. And if the government had decided to add contractual or bargaining unit changes under such legislation, as Saskatchewan did in 1986, what happens then? Do those contractual terms or bargaining unit changes become void? Does it matter if there has been a subsequent successful contract negotiation? Those matters wouldn't offend the right to strike, but they may offend the right to collectively bargain and the right of a group of workers to choose which union will represent them, which were recognized in B.C. Health Services and in Mounted Police Association.

I'm not going to be surprised if governments decide to, as a matter of course, invoke s. 33 in return-to-work legislation. There may be some political backlash but probably (I would suggest) no more so than one already sees with back-to-work legislation in general.

I think governments must be cautious, however, if they wish to go beyond return-to-work and use s. 33 on labour relations legislation generally. First, as I've said before and no doubt will have to say again, governments can still draft essential services legislation. They just have to be balanced in so doing. Using the notwithstanding clause seems an over-reaction to what is almost a non-problem. (That's assuming a particular piece of essential services legislation genuinely is about preserving health and safety, and not just about reducing public sector unions' bargaining power. Again, whether this is the case or not regarding the PSESA, I leave to the reader.)

And second, use of s. 33 isn't permanent. It has to be renewed. Imposing potentially unconstitutional changes to collective bargaining relationships, or changes to bargaining units or union representation rights, and then sweeping those changes under the rug with s. 33 in hopes that it will fall on the next government to deal with them, seems politically unwise and contrary to both labour stability and meaningful collective bargaining - both of which are, at least ostensibly, foundations of Canadian labour law.

As a final note, I thought the Globe & Mail op-ed by Professor Eric Adams from U of Alberta on Mounted Police Association and SFL was really well-done and I find myself in complete agreement with it. I'll just reproduce the last paragraph here:

Certainly these decisions mean that courts will hear more cases involving the freedom to associate, and governments will be forced to more frequently justify prohibitions on the right to strike as a reasonable limit in a free and democratic society. But just as these decisions will not revolutionize labour relations, they will not overturn the proper role of judges in our constitutional order. Balancing rights and freedoms against broader public goals in a democratic society is never easy, but that is the role the Constitution has assigned governments in legislating and the judiciary in supervising that legislation against constitutional standards. Ignore the cries of distress about the constitutional right to strike, that is just the Charter going to work, as it must, as it should.

Thursday 19 February 2015

SFL v. Saskatchewan: Collected Reactions, and LabourWatch's Understandable Frustration

SFL v. Saskatchewan predictably sparked a lot of discussion. This post, by the way, was written - more or less - a couple of weeks ago. So time has marched on, and this post is therefore a bit dated, but rather than discard it I figured I'd post it anyway.

Steven Barrett and Ethan Poskanzer at Sack Goldblatt Mitchell, a union-side labour firm, reviewed the decision and  suggest in conclusion that

The majority opinion, firmly rooted in Canadian labour history, international law and Canadian constitutional jurisprudence, will no doubt have ripple effects for many years to come.
Omar Ha-Redye, a lawyer in Toronto, reviewed the decision and suggested that the language of the majority in SFL doesn't necessarily mean a right to strike per se but, rather, a right to a meaningful dispute resolution mechanism. That might be a strike, but it could be something else.

David Doorey, in his article I referenced last time, mentioned a lot of the questions that remain - what does this mean, if anything, for those in the private sector or not in a union at all? Or for public sector workers excluded from labour legislation? Or for Ontario agricultural workers who, in Fraser, were told they didn't have a right to any particular dispute resolution process - but a strike (said the Supreme Court) would qualify as just that?

Murray Mandryk at the Regina Leader-Post stated that this is a loss that Premier Wall should take seriously.. In an editorial, the Leader-Post took the position that an essential services statute was necessary, but that the government had rushed into things.

Premier Wall, of course, followed up his "hey, look, football!" joke which I mentioned last time with a comment that the government was considering using the "notwithstanding clause" in order to pass legislation that violated workers' constitutional rights - despite the fact that even after the SFL decision,  you can still have essential services legislation, you just have to craft it a bit better than was done last time.

Meanwhile,, I appeared very briefly on John Gormley Live, a local radio talk show, to discuss the SFL v. Saskatchewan case. John is no friend of labour, but he's very personable and I don't think I came across as too much of a stumbling boob, so I'll call it a win.

The guest immediately before my segment was John Mortimer, president of LabourWatch, a non-profit, anti-union organization whose membership is anti-union employer groups and management-side law firms. LabourWatch's website is all phrased in carefully neutral language, but once you scratch beneath the surface and notice code like "being union free", their gleeful posting of decertification applications where their name is mentioned, the fact that there's no comparable information there on how to become unionized, and, well, the fact that its membership is anti-union employer groups and management side law firms, makes it pretty clear that LabourWatch isn't really about balance or "informed choices".

(Frankly, I'm not sure why Mr. Mortimer and his group think their odd form of "help" is needed. In 2014, only around 30% of Canada's non-agricultural paid workers belonged to unions, but that's a bit misleading in itself because the number in the private sector is much lower - around 17%, as Justice Rothstein noted in his dissent in SFL - but in the public sector the rate's around 70%, hence the overall 30% unionization rate. But apparently 30% is still too high for LabourWatch, and on and on we go.)

Anyway, Mr. Mortimer seemed notably angry during his appearance. Because unions. You know how it is.

(I picture LabourWatch's reaction to SFL being kind of
like Ogre in Revenge of the Nerds.)

Yet during my few minutes of fame rambling, I opined that the implications of SFL really aren't that huge in terms of Canadian labour legislation overall. It's huge for the public sector, of course. Essential services legislation across the country will need to be reviewed and there may be Court challenges. Return-to-work legislation, where the government passes ad hoc legislation to order strikers back to work, may be subject to challenge. Maybe even common law injunctions against strikes may be more difficult to obtain with a constitutional right to strike in play.

But I don't think SFL opens the door to widespread re-working of Canadian labour law. I don't fully agree with my friend Greg Fingas who suggested:

Meanwhile, some question will also arise as to the new rules setting limiting the availability of job action under the Saskatchewan Employment Act, SS 2014, c S-15.1 ("SEA"). While the SEA's restrictions are primarily process-oriented, they too might run afoul of a substantial impairment threshold - both in general terms, and particularly if they prove unduly onerous under the circumstances of a particular planned strike.
Or at least - I agree the question might be raised, I just don't think a challenge would be successful. The Court in SFL has admittedly made it clear labour law is all about trade-offs; if you infringe on a union's right to strike or collectively bargain, there should be some alternate process, such as binding arbitration, in place. But the amendments to The Trade Union Act were held not to offend the Charter of Rights and Freedoms. In my view the Court has made it pretty clear that it's just not that interested in micromanaging government labour policy. And some of the requirements under the SEA - like mandatory mediation or conciliation - have been present in the modern Canadian model of labour relations since the 1940's. Not every labour relations statute has it or has had it, but it's not like this is all that new. I don't see the courts stepping into this type of minutiae in labour policy, despite its willingness to intervene when labour legislation goes too far.

Never say never, I suppose. I got it wrong on Mounted Police and Meredith, as I mentioned last time, and I'm sure there are union-side lawyers chewing over how to use those decisions to their client's best interests. But I don't think we're looking at a wholesale judicial reconstruction of our labour law in the wake of SFL, and that's why I suggested that the ramifications of SFL will be somewhat limited, especially outside the public sector.

So with all that in mind, why, I wondered, is LabourWatch so angry? What was I missing?

 It took a conversation with my colleague Professor Ken Norman to make things fall into place. Ken commented that he figured SFL meant that U.S.-style so-called "right-to-work" legislation, and the kind of anti-labour efforts that we saw in Wisconsin a few years ago, would now have more trouble crossing the U.S. border. ("Right-to-work", by the way, has precious little to do with workers' rights and everything to do with preventing meaningful collective bargaining, as we'll see.)

The Supreme Court's been pretty consistent at upholding the compromises and trade-offs inherent in our labour law - sometimes only barely, sometimes for different reasons within the same judgment,  but pretty consistently. In Lavigne v. OPSEU, the Court  upheld the "Rand Formula" - mandatory payment of union dues by those covered by a collective agreement. In RWDSU v. Pepsi-Cola, it recognized the importance of picket lines but also set guidelines around what kind of behaviour on the part of strikers was impermissible. In R. v. Advance Cutting and Coring, it upheld the ability of the Quebec government to require mandatory membership in one of five unions in the construction industry.  In Bernard v. Canada, the Court upheld the right of  a union to obtain contact information for its members so that it could properly represent them.

Much of this came about because of a recognition by the Court of the trade-offs within Canadian labour law. In every Canadian jurisdiction, when a majority of workers within a proper bargaining unit elect to certify a union as their bargaining agent, that union is the only one with rights to represent that bargaining unit. As a result, the union has a duty to "fairly represent" all workers within that unit - whether they voted for the union or not, whether they come to union meetings or not, whether they try to decertify their workplace or not. And because a union has that statutory duty, the trade-offs such as mandatory union dues and provision of contact information are necessary to fulfill it.

And there's the rub. LabourWatch and its funders and members are all about right-to-work laws. Mr. Mortimer was very clear on that during his interview - right-to-work legislation like they have in many U.S. states was the answer to all our labour woes, but (he complained) no politician seemed willing to take that step (other than perhaps characters like former Ontario Tory leader Tim Hudak or the Wild Rose Alliance in Alberta). LabourWatch desperately wants American-style right-to-work laws where workers who are covered by collective agreements don't have to pay union dues.

But here's the problem. Under many right-to-work schemes (if not all, because this is about weakening workers' bargaining power, remember?) those not paying dues still benefit from the collective agreement, and this creates a huge "free rider" problem within the bargaining unit. And under such schemes the union often still retains a duty to fairly represent non-members and non-dues-paying workers. But by allowing and, indeed, encouraging free riders, you're thereby reducing the ability of unions to pay staff, hire lawyers, pay strike pay, etc., which in turn makes those workers who do become members or pay dues see less value for their money, which encourages them to decertify, and so on. Groups like LabourWatch know this.

There are things to dislike about our current system, and you don't need to be anti-union to feel that way. There have been a number of union-friendly voices who are critical of our current model and have suggested reform. But just cutting out one part of it, as LabourWatch suggests - one part that helps fuel the "engine" of the system, at that - isn't the answer. While these moves are often dressed up in high-sounding language like "employee choice" or, indeed, "right to work" itself, it's really about weakening unions - without, I hasten to add, changing anything else in the legal regime. So let's be clear: just slapping a "right-to-work" amendment to the existing system is a clear signal that you're not interested in "balance".

But SFL v. Saskatchewan, taken with the January 16th Mounted Police Association case, has  established (suggested Ken, and I agree with him) that implementing right-to-work legislation won't be easy in Canada. You can't arbitrarily declare that workers can't have independent union (Mounted Police Association). You can't strip unions of their ability to represent their members or to collectively bargain (which is what right-to-work would do) (SFL v. Saskatchewan). You can't impose arbitrary, one-sided amendments; you need to consider what workers are gaining, and what they're losing, and you need to respect.the workers' constitutional labour rights.

And I think that's why this case annoyed John Mortimer so much. There'll be no overturning Lavigne v. OPSEU now. No wonder LabourWatch is grouchy.

For my part, when I was talking about the limited impact of SFL, I was thinking purely in terms of using SFL v. Saskatchewan as a "sword" - to try to challenge existing laws. I didn't really think of its uses as a "shield" - trying to defend against American-style labour laws or against attempts to turn our provinces into Scott Walker's Wisconsin. So maybe SFL's ramifications are more significant than I thought.

...Unless, of course, a government implements such legislation, but insulates it from constitutional review by using the "notwithstanding clause" in s. 33 of the Charter. But that's a (more timely) discussion for next time!