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:

Striking down a law is often just the beginning in the life of a law. The sky did not fall. https://t.co/6T3UhxI7FW

— Eric Adams (@ericadams99) October 15, 2015

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, inspiremybusiness.com.au.

 
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.

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.

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 ufcw232.ca).

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.)

(Represent!)

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.