TEACH­ERS, BAR­GAIN­ING & THE CON­STI­TU­TION

Saskatoon StarPhoenix - - OPINION - CHARLES SMITH AND KEIR VAL­LANCE

The con­sti­tu­tional right to col­lec­tive bar­gain­ing does not guar­an­tee vic­tory for ei­ther of the par­ties, but rather de­mands a form of mu­tual re­spect and demo­cratic di­a­logue. Charles Smith and Keir Val­lance

There is lit­tle de­bate that the Saskatchewan Party gov­ern­ment has had a rocky re­la­tion­ship with the prov­ince’s labour move­ment. Since com­ing to power in 2007, the Saskatchewan Party has made sig­nif­i­cant leg­isla­tive changes to the rules sur­round­ing em­ploy­ment re­la­tions, in­clud­ing rais­ing the thresh­olds for unions to suc­cess­fully or­ga­nize, loos­en­ing re­stric­tions for em­ploy­ers to uni­lat­er­ally re­move so-called su­per­vi­sors from ex­ist­ing union lo­cals, and im­pos­ing far reach­ing es­sen­tial ser­vice leg­is­la­tion, uni­lat­er­ally with­draw­ing the right of pub­lic sec­tor work­ers to strike. In the lat­ter case, the gov­ern­ment’s es­sen­tial ser­vice leg­is­la­tion was struck down by the Supreme Court of Canada in SFL v. Saskatchewan (2015) as vi­o­lat­ing the free­dom of as­so­ci­a­tion pro­vi­sions in the Char­ter of Rights and Free­doms.

The Saskatchewan Party’s murky record re­gard­ing or­ga­nized labour’s rights has been par­tic­u­larly trou­ble­some in ed­u­ca­tion. In June, the gov­ern­ment down­loaded half of its 1.9 per cent ne­go­ti­ated wage in­crease for teach­ers to school boards, forc­ing local in­sti­tu­tions to pay for a col­lec­tive agree­ment that they had no hand in ne­go­ti­at­ing. To state that this is a vi­o­la­tion of good faith ne­go­ti­a­tions is clearly an un­der­state­ment, as boards were forced to squeeze their ex­ist­ing bud­gets to find sav­ings for a pro­vin­cial de­ci­sion.

Rec­og­niz­ing the gov­ern­ment’s murky his­tory with teach­ers, it was sur­pris­ing to read Ed­u­ca­tion Min­is­ter Don Mor­gan’s most re­cent dec­la­ra­tion re­gard­ing fu­ture ne­go­ti­a­tions with school em­ploy­ees. In his let­ter to school board chairs, Min­is­ter Mor­gan stated quite em­phat­i­cally that school boards “are ex­pected to en­sure there are no in­creases to the to­tal cost of em­ployee com­pen­sa­tion as a re­sult of on­go­ing ne­go­ti­a­tions, or ne­go­ti­a­tions for con­tracts yet to ex­pire.” In other words, the prov­ince is now declar­ing that col­lec­tive bar­gain­ing be­tween ed­u­ca­tion em­ploy­ers and its union­ized work­force is vir­tu­ally mean­ing­less be­cause the min­istry has al­ready set the terms for fu­ture agree­ments.

The prob­lem with such heavy­handed ne­go­ti­a­tion tac­tics is that it ar­guably runs afoul of the Char­ter’s pro­tec­tion of col­lec­tive bar­gain­ing. In a se­ries of re­cent de­ci­sions, the Supreme Court has af­firmed that work­ers have the right to col­lec­tively bar­gain, which in­cludes gen­uine, “good­faith” ne­go­ti­a­tions. As the court af­firmed in Bri­tish Columbia Teach­ers’ Fed­er­a­tion v Bri­tish Columbia (2016), from a con­sti­tu­tional per­spec­tive, good faith ne­go­ti­a­tions in­clude the fol­low­ing: first, the par­ties are re­quired to meet and “en­gage in mean­ing­ful di­a­logue where po­si­tions are ex­plained and each party reads, lis­tens to, and con­sid­ers rep­re­sen­ta­tions made by the other.” Sec­ond, par­ties en­gaged in col­lec­tive bar­gain­ing must “not be in­flex­i­ble and in­tran­si­gent” and third, must “hon­estly strive to find a mid­dle ground.”

While the court rec­og­nized that these prin­ci­ples are meant as a gen­eral tem­plate and are “al­ways con­text spe­cific and fact-based” we be­lieve it sets out a use­ful guide to as­sist par­ties in ful­fill­ing their con­sti­tu­tional du­ties with re­gards to col­lec­tive bar­gain­ing. In this case, the gov­ern­ment has al­ready jet­ti­soned its duty to en­gage in “mean­ing­ful di­a­logue” and is clearly act­ing in an “in­flex­i­ble and in­tran­si­gent” man­ner. It is al­most im­pos­si­ble to de­ter­mine how it will seek to find a so-called “mid­dle ground.”

An­other rea­son why we find Min­is­ter Mor­gan’s ac­tions so ec­cen­tric is that the Supreme Court stated clearly in Health Ser­vices and Sup­port — Fa­cil­i­ties Sub­sec­tor Bar­gain­ing Assn. v. Bri­tish Columbia (2007) that the con­sti­tu­tional pro­tec­tion of col­lec­tive bar­gain­ing merely pro­tects a “process” to en­gage in “fun­da­men­tal work­place is­sues” but that it does not “en­sure a par­tic­u­lar out­come in a labour dis­pute.”

And while the court also rec­og­nized in Mered­ith v. Canada (2015) that govern­ments may, in a gen­uine fis­cal emer­gency, leg­is­late wage freezes or roll back ne­go­ti­ated wage in­creases, it is im­por­tant to note that in Mered­ith, the gov­ern­ment lim­ited it­self only to rolling back wage in­creases for three fis­cal years. The wage freeze was time-lim­ited, did not af­fect other as­pects of com­pen­sa­tion, and was shared more or less equally by all pub­lic ser­vants. In our view, the Saskatchewan gov­ern­ment’s cur­rent po­si­tion seems to go be­yond the fed­eral gov­ern­ment’s ac­tions in Mered­ith.

The Supreme Court’s af­fir­ma­tion of a con­sti­tu­tional right to good faith col­lec­tive bar­gain­ing seems to have elim­i­nated the abil­ity for gov­ern­ment to sim­ply use a heavy leg­isla­tive hand to uni­lat­er­ally ad­dress fis­cal dif­fi­cul­ties. Rather, gov­ern­ment must re­spect the con­sti­tu­tional rights of its work­ers. In so do­ing it is im­por­tant to re­mem­ber that the con­sti­tu­tional right to col­lec­tive bar­gain­ing does not guar­an­tee vic­tory for ei­ther of the par­ties, but rather de­mands a form of mu­tual re­spect and demo­cratic di­a­logue be­tween worker and em­ployer.

In a free so­ci­ety, we should de­mand noth­ing less.

Charles Smith is an As­so­ciate Pro­fes­sor of Po­lit­i­cal Stud­ies, St. Thomas More Col­lege, Univer­sity of Saskatchewan. He is the co-au­thor of Unions in Court: Or­ga­nized Labour and the Char­ter of Rights and Free­doms (2017).

Keir Val­lance is an As­sis­tant Pro­fes­sor of Law, Univer­sity of Saskatchewan where he teaches Em­ploy­ment Law.

DON HEALY/FILES

Ed­u­ca­tion Min­is­ter Don Mor­gan ne­go­ti­a­tion tac­tics with Saskatchewan’s union­ized teach­ers are ar­guably at odds with the Char­ter of Rights and Free­doms, ar­gue Charles Smith and Keir Val­lance.

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