Sask. government’s Bill 5 ruled unconstitutional
Essential services legislation needs work to be considered legal
Last week, Court of Queen’s Bench Justice Dennis Ball struck down the Saskatchewan government’s essential services legislation, Bill 5. The judge’s ruling, which deemed the law illegal on account of being unconstitutional, left Premier Brad Wall and his government apologizing, backtracking, and promising to do better when making changes.
The Public Services Essential Services Act, introduced by the Government of Saskatchewan during its previous term, changes who gets to designate workers as essential. Previously, unions were responsible for designating their employees or members as essential. The new piece of legislation called for co-operation between public sector employers and unions to decide who is essential – and therefore cannot walk off the job to strike.
The catch that infuriated unions? In cases where an agreement can’t be found, the employer gets the final say.
University of Regina business professor, Sean Tucker, says that small, albeit important, part makes the bill unconstitutional.
“The goal was to have the parties [employers and union members] work together instead of having the unions do it on their own,” he explained. “In the legislation, that triggered a process where the employer could unilaterally designate employees as essential.”
When an employee is considered to be essential, it means he or she cannot walk off the job and is limited in his or her ability to strike. In the case of Bill 5, if the union disagrees with the employers, their only action would be to appeal the number of their members. They could not appeal services or specific workers.
Tucker explains that is the part that needs to be changed under Justice Ball’s ruling.
“In his determination, the workers have a constitutional right to collective bargaining,” he said. “If people were designated who really weren’t essential, but they had no recourse, then they couldn’t exercise their right to protect their right to collective bargaining.”
As Ball ruled, this right is protected under Section 2D of the Charter of Rights and Freedoms, as the freedom of association.
“Five years ago, the Supreme Court of Canada said collective bargaining in a labour context is protected by freedom of association in the Charter,” Tucker said. “To have meaningful collective bargaining, workers must be able to strike.”
Although Ball deemed the law illegal and unconstitutional, the Saskatchewan Government plans to amend it, this time consulting other parties such as labour groups. The premier has publicly admitted the fault and told the press he plans on taking full advantage of the time the judge has given his government to redraft the legislation.
Tucker believes it is the process that Ball is looking for to be altered.
“I think what Ball is asking the government to do is to actually open up the appeal process so that designations can be appealed, not just on the number of union members, but on different grounds,” he explained.
He believes the government will be able to properly redraft the bill, although it might take time for them to do it.
“I suspect they’ll come up with some solution, maybe a Saskatchewan solution, but it will look quite similar to what other provinces do,” Ball said. “Other provinces already have this legislation; it’s nothing new.”
All other provinces have an essential services law, which prevent certain professions that are essential to the safety and wellbeing of the public, such as police officers and fire fighters, from striking. However, Ball’s ruling could have a national impact.
“It is important because Ball has interpreted the freedom of association in a labour context to include the right to strike, which is an important implication,” Tucker said. “That’s an extension with national implications.”