Unions to file Charter challenge on government determining sick leave

Federal unions are challenging the constitutionality of the recently passed budget bill that allows the Conservative government to bypass collective bargaining and limit public servants’ right to strikes so it can impose a new sick leave and disability regime.

The long-anticipated lawsuit was filed in Ontario Superior Court Monday by 12 of the 17 unions representing Canada’s public servants, alleging the Conservatives’ legislative changes violate employees’ right to free and fair collective bargaining and limits the right to strike.

The lawsuit is aimed at the part of the budget bill in which the government gave itself the power to override the Public Service Labour Relations Act and impose a new sick-leave and disability regime for public servants at any time.

The legal action is led by the Professional Institute of the Public Service of Canada (PIPSC) and Canadian Association of Professional Employees (CAPE), the two largest unions for professional public servants, from scientists to economists. The giant Public Service Alliance of Canada is expected to file a separate challenge Tuesday.

Unions argued from the start that the changes are unconstitutional. PIPSC earlier asked Treasury Board negotiators for their word that these new powers wouldn’t be used while the court is reviewing the constitutionality of the law or until a deal is reached at the bargaining table. Treasury Board has not yet replied.

“This government is giving itself the power to directly violate the constitutionally-protected right to meaningful collective bargaining,” said PIPSC President Debi Daviau.

“They have left us no choice but to take legal action to defend these rights and we are asking that they commit not to use this power until a court has ruled on its constitutionality.”

The lawsuit is the latest in a series of outstanding constitutional challenges the various unions have taken against legislation passed by the Conservative government.

A number of significant Supreme Court rulings have changed the landscape for labour rights in Canada. The high court has recognized the right to meaningful collective bargaining as part of the Charter of Rights protection of freedom of association.

In court documents, the unions argue the legislative changes “interfere” with meaningful collective bargaining by reducing the negotiating power of unions.

The Supreme Court also ruled that the right to strike is a corollary to meaningful collective bargaining. The threat or withdrawal of services to improve conditions of employment is an “indispensable” part of the collective bargaining process.

“(Bill C-59) … fundamentally upset the balance of power in collective bargaining, reducing employees’ negotiating leverage and denying employees any control or influence over the bargaining process with respect to sick leave coverage, a vital and important collective bargaining right to employees and Treasury Board’s key concern for this round of bargaining.”

The unions also noted that the legislative changes contravene international labour law, which also recognizes collective bargaining as part of freedom of association.

The unions argue that sick leave is a “critically important” benefit that has been enshrined in employees’ contracts for 40 years. They claim the existing regime is the result of “numerous trade-offs” made at the bargaining table and salary protection in event of illness and disability is a key piece of public servants’ compensation packages.

With the changes, the government can eliminate sick leave altogether, including the 15 million days that public servants have saved in their sick leave banks.

Treasury Board can also dictate terms of the three most contentious issues around sick leave — the amount of annual sick leave public servants will be entitled to, the amount they can carry over to the next year and how the existing sick-leave banks will be handled.