Sunday, December 1, 2013

Talking About Strikes by Greg

Bob Barnetson comments here on the extreme restrictions on free speech about strikes being rammed through Alberta's legislature. But as long as the issue is receiving attention in our neighbouring province, I'll note that similar concerns can be found in two of the Saskatchewan Party's flagship pieces of labour legislation.

By way of comparison, here's the limitation on strikes, lockouts and counselling thereof during the term of a collective bargaining agreement within the The Trade Union Act, RSS 1978, c T-17 ("TUA"), consisting of wording which has not been changed since 1983:

44(1) No employer shall cause a lock-out during the term of a collective bargaining agreement.

(2) No employee bound by a collective bargaining agreement shall strike during the term of the collective bargaining agreement and no person, employee or trade union shall declare, authorize or participate in a strike during that term or counsel a strike to be effective during that term. 

So how has this wording been altered in recent Saskatchewan legislation? Let's start with the Public Service Essential Services Act, SS 2008, c P-42.2 ("PSESA"), which is similar to Alberta's new legislation in limiting speech about banned strikes within the public service - and whose constitutionality is itself in question.

PSESA both dictates that designated "essential services employees" are required to deliver essential services (section 18), and separately prohibits them from engaging in any other job action (arguably including participating in a legal picket line outside his or her own work hours) (section 14). And it then imposes the following restriction governing any "person" within the province:

17 No person or trade union shall do or omit to do anything for the purpose of aiding, abetting or counselling any essential services employee not to comply with this Act.

So Barnetson's hypothetical scenario looks to apply equally under PSESA: any person whose discussion of the difficult choices facing an employee barred from legally striking whose observation is taken to "counsel" a strike may be subject to prosecution. (But no such prohibition is set up to deter anybody from counselling employers to violate their obligations under PSESA.)

If there's an important limiting factor within both Alberta's Bill 45 and the PSESA, it's the fact that both at least apply their limit on free speech only to the discussion of illegal strikes. But the Saskatchewan Employment Act (passed but not yet proclaimed in force) may not even respect that limitation. Compare the below to the TUA provision it replaces:

6-30(1) No employer bound by a collective agreement shall declare a lockout of employees bound by the collective agreement during the term of a collective agreement.
(2) No employee or union bound by a collective agreement shall, during the term of a collective agreement:

(a) counsel a strike against the employer bound by the collective agreement; or

(b) declare, authorize or participate in a strike against the employer bound by the collective agreement.

On the bright side, the limit on "counselling" a strike doesn't apply to the general public. But for employees and unions, the SEA may make it illegal for a union or its members to discuss the possibility of a future legal strike while a collective bargaining agreement remains in force.

The above shouldn't be taken to suggest that Alberta's Bill 45 represents anything less than a gratuitous attack on democratic debate about important workplace issues. But it should highlight the fact that Alberta's government isn't the only one trying to silence public debate about workers' rights - and that merely amending or defeating a single bill is just a first step in ensuring that workers and the public alike can safely talk about strike options, rather than being subject to state sanction for doing so.

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at gfingas@grj.ca if you require legal advice related to labour, employment or privacy issues.

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