Missed Deadlines and the Future of Collective Bargaining in the RCMP

(This post will also be posted to the Usask Law Blog.)

Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, is the federal government's response to last year's decision in Mounted Police Association of Ontario v. Canada, where the existing labour relations scheme for RCMP members (and the absolute exclusion of RCMP members from unionizing under the Public Service Labour Relations Act, of which they would otherwise be able to avail themselves) had been declared unconstitutional. Bill C-7 tries to bring RCMP members under the PSLRA, but with significant procedural and substantive differences in how that Act applies to RCMP members vs. other public servants.

(It also seems to change the name from the PSLRA to the Federal Public Sector Labour Relations Act for some reason, possibly because the government sees the RCMP as part of the federal public sector without truly being part of the public service?)

Bill C-7 is currently before the Senate but has not yet been proclaimed into law. This means that the federal government has now missed the (extended) deadline set by the Supreme Court, the upshot of which is that right now RCMP members lack a collective voice with which to deal with management., because the unconstitutional Staff Relations Program (which was a management-controlled venue which previuously allowed RCMP officers collectively to raise concerns, and didn't have sufficient independence to pass constitutional muster) has been disbanded, and Bill C-7 has not yet been proclaimed to replace the SRP with something else.

Quick! Bring a Certification Application!

It's a bit of an odd situation. RCMP members couldn't unionize under the Public Service Labour Relations Act because they were excluded from the statutory definition of "employee" under that Act (and only "employees" can certify a bargaining agent under the PSLRA, just like other labour relations statutes in Canada.)

The statutory exclusion was struck down in Mounted Police Association in 2015, and the deadline to introduce new legislation has passed. That means that in the interim,  RCMP members are technically now "employees" (without restriction) under the PSLRA, and able to exercise their rights to unionize thereunder with any union they please (subject to the usual requirements of delineating an appropriate bargaining unit, proving majority support within that unit, and so on).

As Michael Mac Neil of Carleton Univerity wryly tweeted:

Quick, make an a certification application under the PSLRA! #RCMP #labourlaw https://t.co/AohyRPhQDq

— Michael Mac Neil (@michaellawcarl) May 17, 2016

Of course a union would probably be foolish to do so; bill C-7 will likely be proclaimed shortly. (And the Mounted Police Association of Ontario, at least, states it's "eagerly awaiting" the new legislative framework, which doesn't suggest an appetite to upset the applecart by filing for certification right now.)

Further, the amended Federal Public Sector Labour Relations Act sets out that there will be a single bargaining unit, covering all RCMP members and reservists in Canada, and that such a bargaining unit is the only possible bargaining unit under the Act.

238.‍13 (1) Subject to section 55, an employee organization within the meaning of paragraph (b) of the definition employee organization in subsection 2(1) that seeks to be certified as the bargaining agent for the group that consists exclusively of all the employees who are RCMP members and all the employees who are reservists may apply to the Board, in accordance with the regulations, for certification as bargaining agent for that group. The Board must notify the employer of the application without delay.

The Act further sets out that the bargaining agent - i.e. union - that represents the RCMP members can't represent any other bargaining unit (s. 238.15), and the bargaining unit can't include anyone other than RCMP members and reservists (s. 238.16).

In other words, while RCMP members can select their bargaining agent (in Mounted Police Association there were three associations seeking representation rights, one based in B.C., one in Ontario, and one in Quebec, so there may be some competition for that role), they all have to select the same one, and that bargaining agent can only represent the RCMP. So, we won't be seeing the United Steelworkers or United Food and Commercial Workers representing RCMP members any time soon.

Choice in bargaining agent notwithstanding, it's quite similar to "designated bargaining agent" labour relations models, such as those designating unions for teachers and nurses. But the practical effect is that any pre-existing union, even if successful, couldn’t maintain representation rights after the passage of the new Act.

So practically speaking, RCMP members are collectively without representation until Bill C-7 is passed; when it will be passed depends on the Senate's schedule. But should the government take too long in implementing the new regime, I wonder if one of the staff associations involved in the appeal in Mounted Police Association would take matters into its own hands and apply for certification for a group of RCMP members, if only to encourage the government to move things along?

(I'll answer my own question: No, they probably wouldn't, for the reasons already given.)

Bill C-7's Restrictions on Collective Bargaining

Bill C-7 hasn't been uncontroversial; there are still provisions, unsurprisingly unpopular with RCMP members, that strictly limit what any prospective RCMP union will be able to negotiate for its members.

Specifically, s. 238.19 of the new Act states:

238.‍19 A collective agreement that applies to the bargaining unit determined under section 238.‍14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;

(b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act; or

(c) the term or condition relates to

(i) law enforcement techniques,

(ii) transfers from one position to another and appointments,

(iii) appraisals,

(iv) probation,

(v) discharges or demotions,

(vi) conduct, including harassment,

(vii) the basic requirements for carrying out the duties of an RCMP member or a reservist, or

(viii) the uniform, order of dress, equipment or medals of the Royal Canadian Mounted Police.

So: no negotiation over pensions (governed by the federal superannuation and pension acts), nor wages if the government (as it did in Meredith) sets, by statute or regulation, what wages will be. No negotation over probation periods, performance appraisals, or discharge or demotion procedure. (Would that mean that negotiating a grievance procedure under which discharge or demotion could be challenged is also off the table?) No negotiation regarding duties or conduct while on the job. Frankly, it's difficult to see what substantive areas are left for an RCMP union to negotiate.


The RCMP itself has portrayed these changes as ensuring that RCMP members can "exercise their Charter-protected freedoms, including freedom of association," but I think these restrictions raise the question of whether the new Act prevents "meaningful collective bargaining", in the sense used by the Supreme Court in B.C. Health Services in 2007 and in Mounted Police Association, Meredith v. Canada, and Saskatchewan Federation of Labour in 2015. In Meredith a rollback of negotiated wage increases was not unconstitutional, but this Act prevents both present and future negotiations on a whole host of issues. Job security, wages, pensions, the ability to challenge whether your dismissal was for just cause, having some say in the employer's ability to transfer employees from one workplace or job to another...these are important issues that many unions negotiate hard for. To have them taken off the table entirely seems to leave any RCMP union the ability to nibble around the edges of its members' terms and conditions of employment, but leaves it without much actual clout. In other words RCMP members may be able to exercise sufficient choice in selecting their union, and their union may have sufficient independence from the employer, to satisfy the (quite basic) requirements set out by the Supreme Court in Mounted Police Association.

But whether the union could actually engage in "meaningful collective bargaining" is another issue. One of the reasons the health sector legislation passed by the B.C. Liberals was struck down in B.C. Health Services was because the legislation not only made significant changes to negotiated terms and conditions of employment; it also prevented any negotiation between health care unions and health care employers regarding those, and other, contractual terms.

It's worth noting that the B.C. Liberal government is facing another Charter challenge which is heading to the Supreme Court of Canada, this time regarding a prohibition on negotiating class sizes in the public school system. It's a similar issue, though to a lesser degree - to what extent can a government limit the ambit of collective bargaining without running afoul of s. 2(d)'s guarantee of freedom of association? (Mind you, no Canadian government has gone as far as Scott Walker's Republican administration in Wisconsin, which limited collective bargaining in the public sector only to wages - and any wage increases were then capped to the Consumer Price Index, at that - but there is still significant uncertainty about just how far a government can go.)

I would not be surprised if the courts haven't seen the last of the RCMP unionization saga.



 

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.

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.

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.