At the beginning of February, Justice Dennis Ball of the Saskatchewan Court of Queen’s Bench delivered the court’s decision (SFL v Province of Saskatchewan QBG 1059 of 2008) on the SFL Charter challenge regarding the government’s new legislation The Public Services Essential Services Act (Bill 5) and the amendments to The Trade Union Act (Bill 6). SEIU-West was an intervenor in this case, along with the Saskatchewan Union of Nurses (SUN) and the Canadian Union of Public Employees (CUPE) – the Plaintiffs in this case were named as the Saskatchewan Federation of Labour (SFL) and nineteen or so of its affiliates.
We have talked about this case a great deal over the last few years with our members. However, it bears repeating why we went forward with the case.
The Plaintiffs and Intervenor Unions argued that Bill 5 violated our members’ rights under the Charter of Rights and Freedoms of Canada. Essentially (no pun intended!), we said that your right to take legal job action, including the strike, in support of collective bargaining was significantly impaired and members’ right to freedom of association as protected by the Charter was violated. SEIU-West put forward our experiences how the essential service legislation affected collective bargaining. We didn’t have any unique evidence to put forward any arguments in relation to the amendments to The Trade Union Act.
The Government of Saskatchewan was the Defendant in this case – and they too had a cast of many intervenors. They argued that Bill 5 didn’t violate our members’ rights under the Charter because Section 1 saved it from having to uphold your right – in essence, that the Essential Services legislation did allow for a limited right to strike and that public safety concerns overrode an individual’s freedom of association and right to strike.
The decision by Justice Ball indicated that there are many provinces across Canada that have essential services legislation and those provinces’ laws allow for an independent dispute resolution process. In those jurisdictions, any disputes about Essential Services can be determined by an independent 3rd party with an eye towards fairness for both parties. As well, many of the other provinces have a binding arbitration mechanism to resolve disputes arising at collective bargaining tables. The Essential Services legislation in Saskatchewan doesn’t include any sort of reasonable balancing processes – which is where the problem lies and, in part, why the Saskatchewan legislation was declared unconstitutional. Justice Ball also pointed out that the Government of Saskatchewan didn’t properly consult with stakeholders, like SEIU-West, when deciding what this legislation would look like.
We have posted Justice Ball’s decision on our website and I encourage you to read it (click on the following link for the PDF document:SFL v Province of Saskatchewan QBG 1059 of 2008). It’s well written and fairly takes a look at past job actions and their result, as well as pointing out the problems with the current essential services legislation.
So what does this mean for SEIU-West members? Well, the short answer is that nothing really changes right now. The Plaintiffs and Defendants agreed that should the decision be in the Plaintiffs favour, Justice Ball’s decision would be suspended, or put on hold, for a period of 12 months to give the Government of Saskatchewan time to make the necessary amendments to the essential services legislation. This is common.
Over the longer term, the decision means that there is a unique opportunity for both the trade union movement and the Government of Saskatchewan to sit down and really talk about the intent and scope of this legislation. In the healthcare sector, SEIU-West members have never contemplated job action without ensuring that there would be emergency services provided. In other sectors, education or municipalities or community-based organizations, SEIU-West members have always recognized the need to provide those emergency services that our communities rely on during a job action. I repeat: members have always recognized this and we have always planned to provide services.
If we can sit down and talk with the Government of Saskatchewan, to explain the realities in our sectors, and work with them to make fair and reasonable legislation that lets us keep the public safe while still being able to exercise our rights under the Charter… that will be a step in the right direction for the people of Saskatchewan, our members, and those that we serve within our jobs.
The decision from Justice Ball was a good decision – well thought out, balanced and provides the parties with direction on how to improve things. The next steps belong to the labour movement and the Government of Saskatchewan: we all have a stake in making this province even better – this is a rare opportunity to establish a relationship that works.
President – SEIU-West