FIGHT FOR SICK LEAVE
PSAC takes bill to court
This legislation empowers the employer to achieve its top bargaining priority without having to make any concessions or bargain to the point of impasse, and has effectively rendered the collective bargaining process meaningless
PSAC
The largest union representing Canada’s public servants is seeking an injunction to stop the Conservative government from using the budget bill to unilaterally impose a sick leave deal before the courts determine whether the legislation is constitutional.
The Public Service Alliance of Canada is the latest federal union to file a legal challenge against the Conservatives’ recently passed budget bill. It argues the powers it gives Treasury Board to overhaul sick leave and disability in the public service violates employees’ right to free and fair collective bargaining as guaranteed by the Charter of Rights and Freedoms.
“The Supreme Court has confirmed that the right to collective bargaining is a protected right under the charter and we are defending that right through all legal means at our disposal,” said PSAC president Robyn Benson.
At the same time, PSAC is seeking an order that the part of the budget bill that overrides the Public Service Labour Relations Act — allowing the government to impose whatever sick leave deal it wants — should be stopped until the court determines whether the changes are constitutional or not.
PSAC would have to file a formal motion for an injunction before the court would consider it. It is also asking the court to declare that the same section of the bill is “of no force or effect.”
A big problem for the 17 unions is that it could take months for a constitutional challenge to be heard and with the passing of the budget bill, the government can exercise its new powers at any time.
If the government does proceed with its plan to change the existing sick leave regime and eliminate all banked sick leave, PSAC also asked the court that all contracts be reopened and existing sick leave benefits be restored if the law is found to be unconstitutional.
The unions have signalled their intention to file Charter challenges against Bill C-59 since it was tabled in April. The government is also relying on $900 million in savings this year from scrapping the existing sick leave regime to balance its books.
With PSAC’s legal challenge, the major unions have half a dozen outstanding constitutional challenges against legislation passed by the Conservative government. In 2013, the government changed the rules for collective bargaining in another budget bill (C-4) that significantly diminished the unions’ bargaining clout.
Earlier this week, 12 other federal unions filed a joint constitutional challenge. Like PSAC, the big issue for all of them is that the new legislation overrides collective bargaining to impose the sick leave terms it wants, as well as a new short-term disability plan.
Sick leave is the biggest and most contentious issue in the current round of bargaining, which began more than a year ago. The terms of sick leave have been negotiated and embedded in public servants’ contracts for 40 years.
A number of significant Supreme Court rulings have dramatically changed the landscape for labour rights in Canada since 2007. The high court has recognized the right to meaningful collective bargaining as part of the Charter’s protection of freedom of association.
The Supreme Court has also ruled that the right to strike is a corollary to meaningful collective bargaining, and the threat of withdrawal of services is essential to the bargaining process.
“This legislation empowers the employer to achieve its top bargaining priority without having to make any concessions or bargain to the point of impasse, and has effectively rendered the collective bargaining process meaningless,” said PSAC’s application.
PSAC argues the legislation violates Charter rights because it limits the scope of bargaining and gives Treasury Board the power to override existing contracts, and hence all the previous rounds of collective bargaining that led to those contracts.
The union said sick leave is the top issue in this round of bargaining and the government interfered in those talks by changing the law in the middle of negotiations so it could unilaterally decide on sick leave, short-term disability and changes to the existing long-term disability plan.
The law also denies employees the right to strike on sick leave because the terms will be decided by the government rather than negotiated up to the point of impasse.
“Meaningful collective bargaining cannot take place … (when) Treasury Board possesses the authority to unilaterally establish these important terms and conditions, regardless of what occurs during bargaining. Thus, the current collective bargaining process is rendered effectively meaningless,” said the application.
PSAC said the latest legislation is particularly “egregious” because it comes on the heels of a previous budget bill that shifted bargaining power in the government’s favour.
The union also argues the government has no “pressing and substantial” reason, such as financial crisis or emergency, to justify violating employees’ Charter rights.
The big question in all the legal wrangling is when the government will use its new powers to impose a sick leave deal, setting terms on three most contentious issues: 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.
The timing for such a move is entirely left up to cabinet to decide but Treasury Board President Tony Clement has said he wants a deal before the election.
ROBYN BENSON, PSAC president The Supreme Court has confirmed that the right to collective bargaining is a protected right under the charter and we are defending that right