TEACHERS, BARGAINING & THE CONSTITUTION
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.