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Supreme Court ruling on Saskatchewan public service labour law has huge implications for Alberta

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Supreme Court of Canada

The Supreme Court of Canada's ruling last Friday that Saskatchewan's "essential services" law is unconstitutional because it interferes with the Charter-protected right of public sector workers to bargain collectively and strike if necessary spells big trouble for Alberta.

Well, it doesn’t have to. There's a sensible response Alberta could take. But given the history of public sector labour relations in this province, and the attitudes that drove it, that seems unlikely the Alberta Government will simply take the hint and rewrite the province's public sector labour laws to comply with the country's supreme law.

No, "oil price trough" notwithstanding, Alberta’s Progressive Conservative  Government is much more likely to hose away tens of thousands -- possibly millions -- of dollars of tax money to go back to the Supreme Court to defend its own self-evidently unconstitutional public sector labour legislation.

Back in 2007, the Supreme Court ruled that a British Columbia law tossing out a public service union's contract violated the union's right to bargain collectively. The ruling also explicitly extended the right to freedom of association guaranteed to citizens by the Canadian Charter of Rights and Freedoms to include the right to free collective bargaining by groups of workers.

At the time, it was obvious this was a highly significant decision, but many legal scholars expected the court to roll back the sweeping nature of the ruling in later cases. This does not seem to be what has happened.

And so on Friday, the Court ruled on several cases rolled into one that had challenged Saskatchewan’s "essential services" legislation. I have placed the words essential services in quotations because the intent of this law was obviously to interfere with the right of public sector workers to bargain collectively under the guise of protecting essential services.

The province's conservative Saskatchewan Party government introduced the law soon after it was elected in 2007. The law required employers and their employees' union to agree which workers were essential and, if they couldn’t, let the government decide for them. In practice, the government could declare all workers in a worksite to be essential.

The law was challenged by the Saskatchewan Union of Nurses, the Saskatchewan Federation of Labour and other labour groups, and thereafter made its way through the courts, with the Regina Court of Queen’s Bench ruling it unconstitutional in February 2012 and the Saskatchewan Court of Appeal reversing that decision in 2013.

The Supreme Court has now spoken. It ruled Friday that the law is unconstitutional. Saskatchewan has a year to come up with a new version consistent with the Charter. Saskatchewan taxpayers will have to foot a considerable portion of the bills for the seven-year fight indulged in by their government.

This, of course, is not the end of the matter. First of all, Nova Scotia, Newfoundland and British Columbia all have similar essential services laws to which this ruling may make effective challenges possible.

And then there is Alberta. Here in wild rose country, we don't even pretend to be in compliance with the Charter when it comes to public sector labour law. Well, in Alberta’s defence, its principal public sector labour law predates the Charter by five years.

We don't even pretend, as Saskatchewan did, that this is about essential services. So, for years, it’s essentially been completely illegal for all public employees to strike in any circumstances in Alberta. Period. Civil servants, health care workers, teachers -- all the same.

However, since the Peter Lougheed era in Alberta, this has been balanced by the use of binding arbitration, albeit with some highly unfair restrictions.

OK, we won't let you strike, the Lougheed Government in effect said, but if you can’t reach an agreement with your public sector employer, we'll have an unbiased, disinterested arbitrator split the difference and issue a ruling everyone has to obey based on prevailing norms in the country and the job category.

Certain things couldn't be arbitrated by public employees -- working conditions and pensions startlingly among them -- but this still allowed a modicum of fairness on wages in return for losing the right to strike. With an arbitrator waiting in the wings, it was harder to argue convincingly there was no meaningful way employees could bargain collectively.

Lately, though, that hasn't worked very well for Alberta's PC governments, in part because they wanted contracts no arbitrator would agree to. So in 2013, the Redford Government brought in the Bill 46, the Public Service Salary Restraint Act, which allowed it as the direct employer to impose whatever deal it felt like on the Alberta Union of Provincial Employees' civil service members with no recourse to an arbitrator.

That was so outrageous that an Alberta superior court granted the union an injunction suspending the implementation of the bill till the union’s appeal of its constitutionality was complete.

Without the hammer of Bill 46 hanging over AUPE, collective bargaining worked as it was supposed to, and the union bargained a deal -- that would be the one the Prentice Government is now trying to wiggle out of with talk of five per cent rollbacks for everyone in the public sector.

The Redford Government, however, also made it illegal for any Alberta even to talk about a strike by civil servants, in the odious and patently obviously unconstitutional Bill 45, the Public Sector Services Continuation Act, which violates every Albertans' fundamental right to free speech.

Bills 45 and 46 were both passed by the Conservative majority in the Legislature on December 13, 2013. Bill 46 was rendered moot by the agreement with AUPE, but Bill 45 remains on the books.

Of course, Bill 45 will die when it gets to court -- and it’s being challenged now -- although the Redford Government in a typically sleazy fashion passed it and had it and given Royal Assent, but never proclaimed, a technicality that means it's not yet the law of the land (although it can be in about five minutes).

This permits the government to try to argue it can't be challenged in court because it’s not the law… Yet. And if that sounds juvenile to you, I expect it will sound juvenile to the courts too. We shall see.

This illustrates how far after 43 years in power Alberta's PC governments think it's reasonable to go to protect their own advantage in any kind of negotiation, and how little they care about basic fairness or the fundamental rights of Canadians.

The Supreme Court of Canada is pretty clear, as it showed Friday, what it thinks about this kind of thing.

Alas, since the way the law is structured in Alberta is just the tiniest bit different from Saskatchewan's essential services legislation, I expect this will be the argument the Alberta government uses to try to wiggle of the hook set Friday by the Supreme Court.

This could delay the day of reckoning if they try to do that, and it will certainly cost taxpayers a lot of money, but the Court has spoken forcefully enough it's unlikely to make any difference in the end.

If the Prentice Government actually means what it says about the prudent use of your tax dollars in the face of an "oil price trough," it will drop its appeals and get to work making Alberta's labour laws comply with the Constitution of Canada.


This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

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