Queen’s Bench Justice Dennis Ball’s decision on the constitutionality of the Public Services Essential Services Act (Bill 5) and the Trade Union Amendment Act (Bill 6) was issued on Monday afternoon. Tuesday morning, I did a short interview with Charles Smith, a constitutional and labour law expert who teaches at St. Thomas More College in Saskatoon, for a news brief on the judgement. Here’s a link to the brief.
Ball’s ruling runs 132 pages. Most of it concerns Bill 5. In his judgment, Ball didn’t dispute the government’s right to pass essential services legislation. As he noted, most provinces in Canada have some form of legislation to ensure that services that are essential to the health and safety of citizens aren’t adversely affected during a strike involving public sector workers. Prior to the legislation being passed, essential services were provided at the discretion of the union involved. Outside of a few isolated instances, unions generally ensured that the public’s welfare was looked after.
When the government introduced Bill 5, it did so with little consultation with organized labour. In the bill, it gave employers virtually blanket authority to deem employees as essential. In the area of Health, that resulted in hospitals, nursing homes and other facilities declaring over 80 per cent of their employees as essential. While recreation therapists, maintenance personnel and other staff undoubtedly make an important contribution to the long-term well-being of patients and residents it’s a bit of a stretch to deem them as essential to the institution’s operation.
Under Bill 5, public sector unions had no mechanism to challenge employers on this issue. Having been deprived of the right to strike, there was also no impartial mechanism like arbitration provided to employees to resolve grievances with employers. Because of these deficiencies, Ball said, Bill 5 went “well beyond” what was reasonably necessary to achieve the government’s stated objective and thus was unconstitutional.
Yes, the government could appeal the ruling. But the language Ball used in denouncing the bill was pretty strong. So it would seem prudent for the government to try to reach a compromise with organized labour in the 12 month grace period that Ball provided and revamp the legislation. In our interview, Smith said that he’d like to see a broader consultation process, possibly including public hearings, to determine how essential services are defined and provided in the province. Whether that will happen or not is another matter.
As the news brief notes, Ball’s finding that the Charter right of freedom of association under s.2(d) includes the Right to Strike is probably the most controversial aspect of his ruling. It has the potential to impact outside the province, and it might well be the subject of further litigation in the Court of Appeal and possibly even the Supreme Court.
With respect to Bill 6, Ball observed that the evolution of labour law in Canada has always recognized the need for a delicate balance between the rights of workers and the rights of employers. The provisions of the bill, he concluded, did not tilt the balance too far in the direction of employers. That it will make it more challenging for unions to organize workers in the private sector, however, seems inevitable.
In his judgment, Ball placed a fair bit of emphasis on the role the Saskatchewan Labour Relations Board will play in the future in assuring that employers do not abuse the rights granted them under Bill 6. Yes, they have the right to communicate “facts and opinions” to employees, but they can’t cross the line into intimidation and coercion. But the SLRB is susceptible to political manipulation depending on who the government appoints to the board, so that’s likely cold comfort for organized labour. If the SFL and its co-plaintiffs were inclined, they could appeal Ball’s ruling on the constitutionality of Bill 6. But in our interview, Smith said he doubted that they would.