Effect given to the recommendations of the committee and the Governing Body - Report No 367, March 2013

Case No 2654 (Canada) - Complaint date: 12-JUN-08 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 28. The Committee last examined this case, in which the complainants alleged that the Public Service Essential Services Act (PSESA) and the amended Trade Union Act in Saskatchewan impede workers from exercising their fundamental right to freedom of association by making it more difficult for them to join unions, engage in free collective bargaining and exercise their right to strike, at its March 2010 meeting [see 356th Report, paras 313–384]. On that occasion, the Committee expressed its expectation that the Government would ensure that the provincial authorities hold full and specific consultations with the relevant workers’ and employers’ organizations in the future at an early stage of considering the process of adoption of any legislation in the field of labour law so as to restore the confidence of the parties and truly permit the attainment of mutually acceptable solutions where possible. It further requested the Government to ensure that the provincial authorities take the necessary measures, in consultation with the social partners, to amend the PSESA so as to ensure that the Labour Relations Board (LRB) may examine all aspects relating to the determination of an essential service, in particular, the determination of the sectors in question, classification, number and names of workers who must provide services and act rapidly in the event of a challenge arising in the midst of a broader labour dispute. The Committee further requested that the Public Service Essential Services Regulations be amended in consultation with the social partners, that the necessary measures be taken so that compensatory guarantees are made available to workers whose right to strike may be restricted or prohibited, and that the Trade Union Act be amended so as to lower the requirement, set at 45 per cent, for the minimum number of employees expressing support for a trade union in order to begin the process of a certification election. Finally, the Committee requested the Government to encourage the provincial authorities to endeavour, in consultation with the social partners, to find an appropriate means of ensuring that the LRB enjoys the confidence of all the parties concerned.
2. 29. The complainants submitted follow-up information through communications of the Canadian Labour Congress (CLC), on behalf of the Saskatchewan Government and General Employees’ Union (SGEU) and the Saskatchewan Federation of Labour (SFL), dated respectively 10 and 12 November 2010. They provided large numbers of supporting documents and an additional submission of the Service Employees International Union – Canada (SEIU), dated August 2010, on behalf of SEIU-West, a local union with approximately 10,770 members employed by four of the 12 regional health authorities in the province of Saskatchewan. The National Union of Public and General Employees (NUPGE) expressed its full support to these communications.
3. 30. The complainants state that the provincial Government of Saskatchewan (“the provincial Government”) has not agreed to any consultation to implement the ILO recommendations and has not introduced any amendments to the concerned legislation. The SFL adds that the provincial Government has continued to introduce new legislation without prior consultations with unions or workers affected.
4. 31. The complainants assert that the definition of essential services in the PSESA is so broad that it may be applied to cases where there is not a clear and imminent threat to the life, personal safety or health of the population (the complainants provide a number of examples, including: a case where 100 per cent of medical imaging workers were named as essential by the health regional employers; a case where office assistants who send correspondence or answer non-emergency line phones have been named essential; and a case where a very high proportion of the total number of members of a union were qualified as essential).
5. 32. The complainants also point, once again, to the absence of an effective mechanism for unions to challenge the employer’s definition of a service, a classification, or an employee, as “essential”. The LRB itself has stated that its scope of review under the PSESA is very narrow and that it does not have jurisdiction to determine which sectors or classifications are essential, and that its role is only to determine “numbers” (of essential workers). According to the complainants, the LRB nevertheless did not determine any numbers but ordered more bargaining on the numbers. The SFL states that the confidence in the LRB as an impartial tribunal continues to erode and the number of court applications by unions seeking to have decisions of the LRB overturned is increasing. The SGEU provides updated information on judicial proceedings related to the appointments of the current chair of the LRB, indicating that, in September 2010, the Court of Queen’s Bench dismissed its constitutional challenge.
6. 33. The SFL states that the provincial Government has refused to consult in any manner on any proposed compensatory measures for workers and unions who have lost the right to strike, including damages and provision for third party binding arbitration to achieve a collective agreement. It also reiterates its concerns regarding the delays caused by the certification process, an average of 64 days, during which employers allegedly create an anti-union climate.
7. 34. The SGEU further alleges that, in the health sector, the regional health authorities and their bargaining agent (the Saskatchewan Health Care Association (SAHO)) staged a well- planned and impactful communication strategy directed at union members that seriously undermined the SGEU’s ability to represent and negotiate on behalf of these members during negotiations for an Essential Services Agreement (ESA). On 27 July 2010, the SGEU filed an unfair labour practice application which includes the following allegations: (1) the SAHO and the provincial Government communicated with employees in a threatening and coercive manner infringing their right to be represented by the union of their choice; (2) the SAHO and the provincial Government interfered or attempted to interfere with the administration of the SGEU by communicating directly with members and attempting to convince them to question or challenge the SGEU’s representation of members in the collective bargaining with the SAHO; (3) the SAHO has refused, or failed, to bargain in good faith and unilaterally changed rates of pay and conditions of employment without bargaining collectively.
8. 35. The SFL and the SGEU also state that the provincial Government has used the PSESA to impose a province wide “wage mandate” or “wage controls”. Complainants allege that the provincial Government has directed all Government employers bargaining with unions in all sectors covered by the PSESA not to exceed such wage controls unless they get concessions from unions on rights hard won in the past. According to the complainants, unions are now being forced to accept inferior collective agreements (some over three years expired) following protracted, expensive and difficult negotiations unless they are willing to illegally strike and expose themselves to massive fines and court injunctions under the PSESA.
9. 36. In conclusion, the complainants allege that the provincial Government, along with other employers, continues to expand the use of the PSESA to undermine and weaken the associational rights of workers and their unions to take away the right to strike and therefore render the right to free collective bargaining null and void. The complainants particularly refer to negotiations of collective bargaining agreements in the public health sector and allege that the health regions and the SAHO have used the PSESA to deny workers the right to free collective bargaining through outrageously high levels of essential designations combined with concessions at the bargaining table. As a consequence, according to the SFL, the number of workers joining unions has continued to decline to almost a complete halt, thousands of workers continue to be unable to conclude a collective agreement, employer interference has continued to increase, and unions have had to seriously deplete their financial and human resources to deal with the consequences of the PSESA.
10. 37. In a communication dated 29 October 2010, submitted by the Government of Canada, the provincial Government states, in relation to the issue of the determination of essential services, that the process of negotiating essential services agreements (ESAs) has worked successfully (it provides a list of eight ESAs which have been negotiated), and that the process of seeking a review by the LRB of the number and classifications of essential services workers has also been used in three cases, with two decisions rendered and one application withdrawn. In relation to the compensatory guarantees, the provincial Government reiterates that any worker whose right to strike has been impacted as a result of being designated as essential is entitled to the wages and benefits, as established in the collective agreement, for those times when required to work. As regards the 45 per cent threshold, the provincial Government submits that it is consistent with other jurisdictions in Canada (between 40 and 45 per cent in the Canadian provinces and territories and 35 per cent at the federal level); it was therefore not contemplating amendments to the Trade Union Act, but it would continue to monitor this issue and the Committee’s recommendation would be taken under advisement during future revision of the Act. In relation to the appointment of the Chairperson and Vice-Chairperson of the LRB, the provincial Government states that the judicial proceedings filed to challenge its actions in this respect have all been dismissed by the courts and that that the LRB continues to carry out its statutory functions, as an independent, quasi-judicial tribunal.
11. 38. In a communication dated 8 August 2011, the provincial Government states that the PSESA and the Trade Union Amendment Act (TUAA) have been challenged on constitutional grounds, and that, should the Queen’s Bench find any fault on the Government of Saskatchewan, it would take the appropriate action to remedy the situation. In its latest communication, dated 15 February 2012, the Government of Canada provides a copy of the decision that was handed down on 6 February 2012 by the Court of Queen’s Bench for Saskatchewan (decision 2012 SKQB 62) and indicates that the provincial Government was examining the implications of this decision and would provide additional details to the Committee at a later date.
12. 39. In this decision, the Court found that the PSESA infringes freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”), in a manner that cannot be justified by section 1 of the Charter (which permits only such reasonable limitations as may be demonstrably justified in a free and democratic society). The Court concluded that the right to strike is a fundamental freedom protected by section 2(d) of the Charter along with the interdependent rights to organize and to bargain collectively. The Court concluded that, by giving employers a unilateral ability to determine essential services, the PSESA substantially interfered with the freedom of public sector employees in many workplaces to engage in meaningful strike action. The Court found that the PSESA would be substantially less impairing of the right to strike if in every case it made provision for an effective, independent dispute resolution process to address the propriety of public employer designations of employees required to work during a work stoppage and if it provided compensatory access to adequate, impartial and effective overall dispute resolution proceedings in those cases where employer designations effectively abrogate the right of employees to engage in meaningful strike action. The PSESA was found to be unconstitutional and of no force and effect. The declaration of invalidity was suspended for a period of 12 months in order to permit legislative amendments. With regard to the TUAA, the Court held that it did not infringe on the rights of employees to organize, to bargain collectively and to strike.
13. 40. The Committee takes due note of the information provided by the Government and by the complainants, and of the Saskatchewan Court decision relevant to the issues in this case. It further notes the Government’s indication, in its report submitted to the Committee of Experts on the Application of Conventions and Recommendations, that the provincial Government is appealing the 6 February 2012 decision of the Court that the PSESA was unconstitutional, and that the unions are appealing the decision in relation to its finding on the constitutionality of the TUAA. The Committee requests the Government to keep it informed of the decision of the Court of Appeal in this regard, and of any action taken as a result, taking into account its recommendations concerning the amendments to be made to these Acts.
14. 41. In the meantime, the Committee expresses its deep concern at the SFL allegation that the provincial Government continues to introduce new legislation without prior consultations with unions or workers affected, and regrets that the Government has not provided information on the concrete steps taken to follow-up on its previous recommendations. The Committee therefore requests the Government to ensure that the provincial Government take concrete steps to review the PSESA and the TUAA, in full consultation with the social partners concerned, with a view to their amendment in line with its previous recommendations.
15. 42. In addition, noting the complainants’ allegations that a very large number of employees working in essential services have been unilaterally designated as “essential workers” (in some services, it appears that 100 per cent of workers were named as essential workers, including in support services such as medical imaging), and expressing deep concern regarding allegations that a very high proportion of trade union officers and active members have been named as “essential workers” by unilateral designations (which are alleged to be constitutive of anti-union discrimination and/or interference considering the potential impact of such measures on the exercise of trade union rights), the Committee urges the Government, if the allegations are proven to be true, to ensure that the provincial Government takes appropriate measures, including through the establishment of appropriate appeal mechanisms which have the confidence of the parties concerned, in order to limit the designation of workers as “essential” to the strict minimum necessary to operate the essential services in case of work stoppage, particularly in respect of trade union officers, in order to ensure that the scope of the minimum service does not result in rendering the strike actions ineffective.
16. 43. The Committee, while noting the provincial Government’s indications concerning the wages and benefits coverage of workers who are restricted in their right to participate in industrial actions, requests the Government to ensure that the provincial Government take steps, in consultation with the social partners concerned, to establish compensatory mechanisms, such as independent and impartial arbitration procedures that are binding on the parties concerned when they are unable to conclude a collective agreement.
17. 44. Finally, noting the complainants’ allegations that employers have used the provisions of the amended Trade Union Act to interfere in union activities through a well-planned and impactful communication strategy directed at union members during the certification process, the Committee requests the Government and the complainant to provide information on any unfair labour practice applications which might have been filed in this regard, as well as on the results of these procedures.