Saskatoon StarPhoenix

TEACHERS, BARGAINING & THE CONSTITUTI­ON

- 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.
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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