You Don't Have to Unionize but you Can't Stay Here: Supervisory Employees and the Saskatchewan Employment Act

[I've also posted this to the Usask Law Blog.]

The City of Moose Jaw recently made an application to the Labour Relations Board to remove "supervisory employees" from the existing bargaining unit of city employees. The Saskatoon Public Library made noises about doing the same thing in March and it appears that the Library has now commenced its own application. (I was recently interviewed  on this issue.)

These two employers - with, one assumes, more to come - have taken this action because The Saskatchewan Employment Act, proclaimed on April 29, 2014, set out that "supervisory employees" could not be included in the same bargaining unit as those employees they supervise. That provision, however, did not take effect until April 29, 2016; and now employers seem to have decided that it's in their best interests to attempt to have supervisors removed from the bargaining units in which they've operated for a number of years.

(A good, quick summary by employer counsel Kevin Wilson, Q.C., can be found here.)

I should note that this is all contingent on these supervisors being found to be "supervisory employees" under the statute. Most of them, I would imagine, probably are; there may be some edge cases where someone who is ostensibly a "supervisor" isn't a "supervisory employee" under the Act. That's not something I can comment on in these particular cases. But the definition of "supervisory employee" is pretty broad - "assigning hours of work and overtime" seems to include schedulers, for instance, who are only "supervisory" by the most tenuous definition.

The statutory language in the SEA is as follows, and it's unique in Canada:

6-1(o) "supervisory employee" means an employee whose primary function is to supervise employees and who exercises one or more of the following duties:

(i) independently assigning work to employees and monitoring the quality of work produced by employees;

(ii) assigning hours of work and overtime;

(iii) providing an assessment to be used for work appraisals or merit increases for employees;

(iv) recommending disciplining employees...

[exceptions are excluded]

And:

6-11(3) Subject to subsections (4) to (6), the board shall not include in a bargaining unit any supervisory employees.

(4) subsection (3) does not apply if:

(a) the employer and union make an irrevocable election to allow the supervisory employees to be in the bargaining unit; or

(b) the bargaining unit determined by the board is a bargaining unit comprised of supervisory employees.

(5) An employee who is or may become a supervisory employee:

(a) continues to be a member of a bargaining unit until excluded by the board or an agreement between the employer and the union; and

(b) is entitled to all the rights and shall fulfil all the responsibilities of a member of the bargaining unit.

(6) Subsections (3) to (5) apply only on or after two years after the date on which subsection (3) comes into force.

Our labour relations system is based upon "majoritarian exclusivity" - that unionization occurs when the majority of workers within an "appropriate bargaining unit", as determined by the Board, have indicated that they wish to be represented by and collectively bargain through a particular union. That union then has the exclusive right (and accompanying responsibility) to bargain for that group of workers. It's a model that is subject to growing criticism, but there's little appetite among Canadian governments to change it.

Historically, Saskatchewan (and indeed every other Canadian jurisdiction) did not necessarily prevent supervisors and the workers they supervise from being within the same bargaining unit - governed by the same contract, bargaining at the same table, represented by the same union reps, and so on. There have been scenarios where various Labour Relations Boards have declined to certify a unit that included both supervisory and supervised employees, but it's not been required and many "mixed" bargaining units have existed and do exist.


The main argument raised in favour of supervisory exclusion is that supervisors who are within the same bargaining unit as the employees they supervise may find themselves in a conflict of interest, for example between their duties to their employer and their duties and/or loyalties as union members. It's also been argued that supervisors' bargaining priorities may not be respected within the larger bargaining unit, and that supervisors will be better off bargaining with the employer within their own bargaining unit. For instance, the City of Moose Jaw's news release (from the Regina Leader-Post article linked above) stated:

“The City has opted to structure its operations in accordance with the new legislative provisions and believes it can better manage its operations with supervisory exclusion,” the city wrote in a news release. “The concern is that supervisors and employees in the same bargaining unit can create conflict situations in disciplinary, performance assessment or grievance situations.”

 
(I have to make a quick distinction: these are supervisory employees. Managerial employees are already excluded from collective bargaining under the Act entirely. A "managerial" employee is an exception to the definition of "employee" under the Act and means "...a person whose primary responsibility is to exercise authority and perform functions that are of a managerial character..." (s. 6-1(h)(i)(A)). The distinction between a "supervisor" and a "manager" isn't always easy to draw (and is a prime subject for labour law exam questions), and I won't get into the distinction overmuch here.) 

Needless to say, unions in Saskatchewan are greeting applications to exclude supervisors less than enthusiastically.  The major concern is that such changes, first, fragment the existing bargaining unit, weakening its bargaining power; and second, disempower supervisory employees by effectively decertifying them - rendering them non-union - by removing them from the bargaining unit, and then by mandating that they collectively bargain as a smaller unit, if at all, reducing their bargaining power further. It also means that an employer must now deal with the supervisors as individual employees (if the supervisors choose not to re-certify) or as a separate bargaining unit (if they choose to re-certify). There's also uncertainty about the supervisory employees' future and what the Board will decide to do in this new regime, and whether we may find situations now where supervisory employees are simply unable to unionize at all.

See Professor Eric Tucker's take in his 2014 article "Shall Wagnerism Have No Dominion?", page 7, in Just Labour:

"While the managerial exclusion is standard in Canadian Wagnerism, special treatment of an additional layer of supervisory employees, who presumably do not fall into the managerial exclusion, is not. The exclusion of these supervisory employees from all employee bargaining units will not only further fragment an already highly fragmented bargaining model, but in many cases will effectively prevent them participating in the collective bargaining regime at all. This is because in all but the largest workplaces, the number of supervisory workers is likely to be too small to support viable a viable bargaining unit. Moreover, thestatutory exclusion of supervisory employees from larger bargaining units overrides the preference of supervisory and non-supervisory workers to bargain together, where such a preference exists."

It's also worth pointing out that other jurisdictions, such as B.C., address the issue of supervisors on a case-by-case basis. It's not mandated by statute; the Board can tailor a bargaining unit to address the issue of conflicts of interest of supervisors within that particular unit. The Saskatchewan approach is, I think, unduly intrusive, mandating a particular result regardless of the realities within the proposed bargaining unit before the Board.

Personally, I think the mandatory supervisory exclusion is lousy labour relations policy. I'd much prefer an approach that allows the Board to use its expertise to determine what is appropriate in a given case - though that, too, has risks. Contrast the Saskatchewan Act with language from the B.C. Labour Relations Code:

  

29  If a trade union applies for certification as the bargaining agent for a unit consisting of

(a) employees who supervise other employees, and

(b) any of the other employees,

the board may certify the trade union for the unit, for a unit consisting only of employees who supervise or for a unit composed of some or all of the other employees.

In B.C. the Board will still examine a variety of factors to determine if supervisors should be within the same bargaining unit as the workers they supervise; whether a second bargaining unit consisting of supervisors should be granted; or whether supervisors should be denied access to collective bargaining entirely, in the interests of industrial stability. See, e.g., B.C. Ferry Corporation v. Canada Merchant Service Guild et al., which summarizes the s. 29 approach taken by the B.C. Board. In Canada Merchant Service Guild, for instance, the Board refused to create a separate, supervisory, bargaining unit for supervisors who were not within the broader bargaining unit - so those employees, whether or not they were "supervisors" or "managers", were not able unionize under the Code at all. (
(This is of course only one case, which turned on the fact that the work being done was part of an essential public service, and whether this analysis will change (or has changed) in light of the labour jurisprudence, especially Mounted Police Association, I can't say.) It seems possible that a similar analysis might be incorporated into Saskatchewan's case law and, in certain rare circumstances, being a "supervisor" will mean not just being unable to belong to a particular bargaining unit, but to any bargaining unit.
 
A few closing points:

1. These applications are not mandatory.

Nothing in the Act requires that an employer make such an application. Certainly an employer can do so; but nothing in the Act is forcing the City of Moose Jaw, nor the Saskatoon Public Library, to make these applications.

2. Irrevocable elections are still possible.

While CUPE, the union for the library employees, seemed to feel that an irrevocable election under s. 6-11(4) had to be made prior to April 29, 2016, I don't see any language in the Act that limits elections in this way. On the contrary, the language is open enough that employers and unions can still agree to include supervisors even within new bargaining units.


3. How does the SEA apply to existing vs. new bargaining units?

It's absolutely certain that for new bargaining units, supervisors must be excluded.The Act is, however, somewhat ambiguous on the application of the supervisory exclusion to existing bargaining units.

Arguably, the language of the Act could be read so that it does not require the Board to eject all supervisory employees from all existing certification orders. The bargaining unit, as it stands, is already defined; it's already been determined that supervisors are appropriately members of the unit. I don't think saying that the Board "shall not include" supervisors within a bargaining unit is necessarily the same thing as saying the Board "shall amend existing bargaining units to exclude" supervisors.

The Board has generally required demonstration of a "material change in circumstances" before considering any change to an existing bargaining unit. But the Board has also held that change in statutory language - as here, with the introduction of the "supervisory employee" category - is, at least potentially, a "material change" which allows the Board to consider ordering a change. (See e.g. SGEU v. Saskatchewan, [1984] Nov. Sask. Lab. Rep. 38, regarding changes to the definition of "employee".) If there has been a change in circumstances, it's then up to the Board to determine whether the change is "necessary" - whether there's a compelling reason to change the parameters of the bargaining unit. 

Again, arguably, even where there has been a statutory change, amending a certification order is not the same thing as certifying a bargaining unit in the first place. The Board is not required to find that a change - in this case ejecting supervisory employees from their bargaining units - is "necessary".


Which is all well and good, but likely a moot point. The Labour Relations Board has given indications that it will review such applications with a view to enforcing the new definition. Employers and unions, in both consultations prior to introduction of the SEA and in discussions afterwards, have accepted that changes are coming (and many have negotiated "irrevocable elections" under the Act already). Perhaps surprisingly, an (admittedly cursory) review of Hansard doesn't reveal much about legislative intent here; it was implied once or twice - mostly by the opposition NDP - that the changes in the SEA would fragment existing bargaining units, and the few government references seem to implicitly accept that that is the way things will be. But there's no strong statement of legislative intent to be found in Hansard or in government press releases, as far as I can tell; it's more the case that everyone involved has assumed, all the way along, that supervisors will be unceremoniously ejected from their bargaining units when push comes to shove.

And of course even if the Board accepts that it's not technically required to eject supervisors, it would still be open to the Board to do so under its interpretation and application of its governing statute.

4. Supervisors can (probably) still unionize.


The CEO of the Saskatoon Public Library stated that there's nothing preventing supervisory employees from forming a new, exclusively supervisory, bargaining unit. That is, at least theoretically, true - the Act provides for supervisory-employee-only bargaining units (s. 6-11(4)(b), above). However such units must still be certified under the usual process, and the Board must determine if the units are appropriate for collective bargaining.

The Saskatchewan jurisprudence may evolve to reflect this new reality, and it may evolve in ways that will surprise even the employers who are now pushing to exclude supervisory employees.  It's possible that the concept of "fragmentation" within an employer's industrial relations - i.e. proliferation of bargaining units making it unwieldy or impossible for an employer to collectively bargain - will take a higher priority in the Saskatchewan Board's approach, leading to supervisory employees of some employers being denied the ability to collectively bargain at all. On the other hand, the fact that supervisors are now always excluded from the broader bargaining unit, and that the Act specifically contemplates a supervisor-only bargaining unit, might encourage the Labour Relations Board to give greater priority to supervisors’ right to collective bargaining and less to concerns about fragmented bargaining units or industrial stability.


As MLT's Kevin Wilson points out in his post linked above: 

Some unions are advising employers that they should sign an irrevocable election to exclude supervisors because if they do not the supervisors will be placed in a separate supervisory bargaining unit, and then the employer will have to deal with two collective agreements, rather than one. However, employers should be aware that this is not the automatic outcome from excluding supervisors from a bargaining unit. 

I would tend to agree. I'd hope that any excluded employees who wish to remain unionized have the opportunity to re-unionize with a union of their choice. In any event, I'll be very interested to see what the Board does with the applications currently before it.

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 ablawg.ca.

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.

MEANWHILE, BACK IN SASKATCHEWAN...

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.

(from wikipedia.org)

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".

UNIONS!

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.

Saskatoon Transit: The Final(?) Chapter (plus some Ghomeshi)

It feels a bit odd to be writing this post (probably the last one) about the Saskatoon Transit situation, because, first, this blog was started, at least in part, because of the lockout; second, because it all seems a distant memory now that Transit is running again; and third, because of the bizarre news of Jian Ghomeshi's dismissal from the CBC over "sex allegations" (to use the Toronto Star's wording), which I think we can all agree is a much more lurid story than the minutiae of Saskatchewan labour law. Regardless, I'm going to ignore the Ghomeshi story as others have already written about the legal aspects of that case. For example:

Professor David Doorey's comments on the labour and employment law aspects of Ghomeshi's firing are on his blog, The Law of Work, here. In particular: could the CBC fire Ghomeshi for off-duty conduct? And can Ghomeshi bring an action against his former employer in tort, or is he limited to a grievance under his collective agreement?

Professor Brenda Cossman, meanwhile, writes about BDSM and the law of consent in the criminal law context (under Canadian law you can't consent to bodily harm, for a start) for the Globe & Mail, here.

Finally Howard Levitt, an employer-side labour lawyer, characterizes Ghomeshi's lawsuit against the CBC as "hopeless", here. Of course, Levitt being Levitt, he takes the opportunity to go after unions in general, because that's what he does. "How's the weather today, Howard?" "Terrible, and you know who's to blame? Unions." So while Levitt's basic legal analysis may have some merit, take his comments in general with a huge grain of salt. And by "salt" I mean "bias."

Anyway. On to The Saskatchewan Employment Act, which has nothing to do with BDSM, at least not overtly. Reading my analysis of this particular specific point may qualify as masochism on your part, mind.

So, here's a thumbnail sketch of the situation:

1. The City locked out its transit workers while an outstanding, unrelated, Unfair Labour Practice application was still pending before the Labour Relations Board.
2. The Board ultimately ruled that the lockout was illegal, because the SEA makes it illegal for an employer to lock out, or for a union to strike, when there is "any application" pending before the Board.
3. The City argued that the application had nothing to do with collective bargaining or the lockout, and that any application should be read in a more narrow sense than the plain language would suggest.
4. The Board, in my view rightly, did not accept the City's argument and enforced the law as it is plainly written.

Meanwhile, as I've mentioned before, the Saskatoon Star-Phoenix has argued that the SEA needs to be changed in this regard. Which is ironic, given that the Saskatchewan government implemented numerous restrictions on strikes and lockouts in 2013 - such as a requirement to bargain to an impasse (which employers already had, but unions didn't), to respect a 14-day "cooling off period" prior to striking or locking out, and to attend mandatory mediation/conciliation - and the Star-Phoenix seemed to think the new legislation was just fine.

I don't mean to single out the Star-Phoenix here, but that's my big issue with the outcry - such as it is - about these provisions. Restrictions on strikes and lockouts, apparently, are fine. But one employer makes one bad call, and all of a sudden the legislation must be changed.

Employers argued in 1993 that these restrictions should be removed entirely. CUPE in 2012 suggested the restrictions could be tweaked (both mentioned here).  On the other hand, Larry Hubich, President of the Saskatchewan Federation of Labour, has commented that he believes the statutory restrictions should not be changed.

Note, again, that we're dealing with limitations on both employers (6-62(1)(l)) and unions (6-63(2)(b)) in the SEA.

So let's take a look at why these statutory limitations are there.

These provisions have been around since 1944, when The Trade Union Act, 1944 was proclaimed. At the time - and up until 1983 - Saskatchewan's labour legislation didn't prohibit strikes during the term of a collective agreement. The law has since changed in that regard. Now every piece of labour relations legislation in the country has the so-called "peace obligation", which set out that there is to be no strikes or lockouts while a collective agreement is in force. But, again, our labour laws have been revised in 1983, 1993, 2008, and 2012, and no change was made to these statutory limitations on strikes and lockouts.


Because a union could strike, and an employer could lock out, at any time, it was important to prevent either side from using economic pressure to subvert Board processes - from using a strike or lockout to cause the other side to hesitate or be coerced into pursuing its rights before the Board. (RWDSU v. Westfair Foods Ltd., [1993] S.L.R.B.D. No. 32, at p. 16 (Quicklaw)).

Okay, so historically, that was the purpose of the prohibition. What about now? Strikes and lockouts are now forbidden during the term of a collective agreement.

But, once a collective agreement has expired, strikes and lockouts are back on the table. And as the Board pointed out in Re Pepsi-Cola Canada Beverages (West) Ltd., [1997] S.L.R.B.D. No. 58 at para. 13 (Quicklaw):

...In this context, ss. 11(1)(j) and 11(2)(b) [now ss. 6-62(1)(l) and 6-63(2)(b) of the SEA] of the Act can be seen to play a role in containing disputes by not allowing a dispute that has been referred to the Board to become the subject matter of industrial action, although such action otherwise may be permitted under the Act. The prohibition contained in ss. 11(1)(j) and 11(2)(b) of the Act not only prevents the parties from upping the ante in a dispute that is already before the Board, as was suggested as its purpose in the Westfair Foods Ltd. case, supra, it also prevents certain issues from causing unnecessary or protracted industrial action.

Therefore, the risk remains. Contract negotiations can take months or, sometimes, years, especially with big employers. Applications can arise out of collective bargaining (for example, allegations of failure to bargain in good faith, or an employer communicating improperly directly with its employees), or they may be unrelated, but either way may be sufficiently serious that they need to be resolved before a contract can be finalized (as in Pepsi-Cola, above). Or, there may be completely unrelated applications which are not a barrier to finalizing a contract, as was the case with Saskatoon Transit. Either way, these provisions help maintain industrial peace.

And that, I think, is why they've been kept in, rightly or wrongly. It may be that these restrictions actually favour employers, because restrictions on strikes are more cumbersome on unions than restrictions on lockouts are on employers, and the majority of ULP applications are brought by unions, too. Regardless, these provisions "keep the peace", so to speak, in the industrial realm.

The value of the current language is certainty. The City of Saskatoon's arguments were flawed, in my view, because they flew in the face of the plain language of a pretty well-known statutory restriction. But on the policy level, they were also flawed because all of a sudden you're asking the Board to rule on what applications are "relevant" and what aren't. With such uncertainty it'll take an LRB hearing to determine if a particular application is a bar to a strike or lockout, or not. 

(Yes, it took an LRB hearing this time, but the City made a bad call. That happens. Given how public this has been, do you think anyone will make that mistake again?)

There's no question the legislation could be changed. Other jurisdictions in Canada don't have the same language in their various Acts. But I don't think the answer is just to add the words "relevant to collective bargaining" or somesuch to ss. 6-62(1)(l) and 6-63(2)(b). That's going to make things more complicated and uncertain.

Limiting strikes and lockouts to certification applications - to prevent an employer from locking out its employees just because they are trying to unionize, for instance - would be an option. The B.C. Labour Relations Code sets out:

32  (1) If an application for certification is pending, a trade union or person affected by the application must not declare or engage in a strike, an employer must not declare a lockout, and an employer must not increase or decrease rates of pay or alter a term or condition of employment of the employees affected by the application, without the board's written permission.

Similar language to our prohibition, but limited to certification applications; it doesn't include Unfair Labour Practices.(Other jurisdictions have similar prohibitions regarding strikes and lockouts when there's a pending certification application, though with different language.)

That's kind of what CUPE suggested in 2012: specifically exclude most Unfair Labour Practice applications from triggering the statutory prohibition on strikes and lockouts. Other types of applications (like certification applications) would continue to be included.

At the absolute minimum, I think a prohibition on strikes and lockouts while a certification application is pending must remain within the Act, because that is one of the most vulnerable times for both workers and their unions of choice. Now, that may fall under another type of unfair labour practice - a prohibition on using intimidation or coercion to keep an employee from exercising his or her rights under the SEA (s. 6-62(1)(a)) - but this is important enough that I think specific protections are required. And "recognition strikes" - where workers had to go on strike to get employers to recognize the union - are exactly what we've tried to get away from with our labour relations model.

But what if an employer refuses to bargain in good faith with the union representing its employees? That would have been an ULP under the old Trade Union Act (s. 11(1)(c)) and continues to be so under the SEA (s. 6-62(1)(d)). A union could bring an ULP application before the Board requiring the employer to begin to bargain in good faith; and you don't necessarily want an employer to be able to lock-out its workers in retaliation for their exercising their rights under the Act.

But of course the Union is also tying its own hands in such a scenario. Now the Union has to rely upon the LRB to resolve things; it can't strike to force the employer to bargain, either. Whether this is a desirable outcome or not depends a great deal on your policy goals. Saskatchewan governments of all political stripes have seemed to feel that they like the language as is. (Rightly or wrongly.)

Retaliatory strikes or lock-outs could be dealt with by making it illegal to lock out or strike for the purpose of influencing the other side to withdraw any pending application. Again, though, there would be a new subjective element (and therefore further uncertainty) in these prohibitions. Careful legislative drafting would be needed.

But given how rarely this situations arise; given that the present language is certain, and than many of the potential changes would create uncertainty; given that the statutory prohibitions do still have some value; maybe changes aren't all that urgent at all. A bit of a tempest in a teapot; I'd suggest that the government, if it embarks upon changing the law, should keep in mind why the provisions are there in the first place, and ensure that any changes are done in such a way that meaningful collective bargaining is protected and promoted.

Now, having said all that, what'll happen if/when the Court rules on the City's judicial review application? I haven't the foggiest. Judges have disagreed with me in the past and will disagree with me into the future, I'm sure.

Were the Court to overturn the LRB decision, if nothing else, at least I'd get one more blog post out of it.