Wednesday, November 18, 2015

Is Everything An Essential Service? by Greg

Saskatchewan's Bill 183 has been hastily passed during the fall legislative session to put some essential services law in place before the January 30, 2016 deadline set by the Supreme Court of Canada's decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. (See the bill here (PDF), and the committee explanation here (PDF).) And there are some aspects which represent major improvements over both the unconstitutional Public Service Essential Services Act, and the first attempt at a rewrite.

But there are also some aspects of Bill 183 which look rather puzzling - starting with an issue which seems even more problematic than the terms of the PSESA.

The PSESA provision which allowed for a dubiously broad definition of a "public employer" who could dictate which employees were permitted to strike was mentioned in Ball J.'s trial decision in Saskatchewan v. Saskatchewan Federation of Labour, 2012 SKQB 62 at para. 184-185:

Some of the public employers listed in s. 2(i) of the PSES Act employ a  high percentage of essential service workers. Examples include Boards of Police Commissioners, Regional Health Authorities and affiliates, and the Saskatchewan Cancer Agency. Some of the public employers, such as municipalities, have proportionately fewer employees delivering essential services. There is no evidence that some of the public employers employ any employees who are engaged in the delivery of essential services. Examples include SIAST and Saskatchewan Gaming Corporation, a Crown corporation that owns and operates Casinos in Regina and Moose Jaw.

Nevertheless, all of the public employers, from Boards of Police Commissioners acting under The Police Act 1990, to resort villages as defined in The Municipalities Act, have the powers set out under s. 9. of the PSES Act.

Amazingly, Bill 183 goes several steps further in loosening the definitions around essential services. It does not define an "essential service" at all (leaving that assessment to be dealt with through the new and complex essential services process), and defines a "public employer" to be any employer which provides an essential service. So in theory, it applies equally whether an employer is private or public - or even engaged in the delivery of public services at all.

Now, the legislature's intent in Bill 183 is not to render every service provided by any employer an "essential service". In fact, Minister Morgan argued in committee that a statutory definition isn't needed in light of the one approved by the Supreme Court in SFL which is intended to apply (p. 1168):

The definition that’s in the Supreme Court, whether we include it in the legislation or not, is binding on the parties. It’s pretty clear that it’s safety and security are the items that are there. It does not go to economic hardship. It does not go to protection of plant and equipment...

(Bill) 128 may arguably have had the ability for a broader interpretation, but 183 is post the Supreme Court decision and, I think, the safety and security and court services judges (sic).

Unlike PSESA, Bill 183 provides for a determination as to the existence of essential services to be made by an independent third party, not by the employer. But that doesn't mean an employer won't be able to substantially alter the bargaining process by making a claim that it provides essential services.

Where either a union or an employer gives notice that it considers some of the employer's services to be essential, both parties are forced to proceed through the essential services process - including collective bargaining as to the terms of an essential services agreement, then a decision by an essential services tribunal which may take up to 81 days to convene, hear and decide the issue. And this is on top of a mandatory period of mediation or conciliation which may take up to 60 days under the normal rules governing collective bargaining.

In other words, a union which has a strike mandate may be prevented from actually taking job action for a period of upwards of four months after bargaining reaches an impasse. And that may make a substantial difference both in the union's ability to maintain support for the strike, and in the type of economic pressure it can bring to bear on the employer. (A Mall Santas Union may be able to push for some meaningful demands by walking off the job in December; it figures to have much more difficulty if an employer can unilaterally push any strike window into February by dragging out conciliation processes and tribunal hearings.)

It seems that Bill 183 is based on the assumption that nobody will think to make frivolous claims about essential services in workplaces which obviously don't provide them. But given how some employers saw the PSESA as an invitation to attack union bargaining positions, it's hard to see that assumption as a reasonable one even in the public sector - and there's all the more reason for concern that private parties who weren't involved in the development of Bill 183 may suffer from the abuse of its terms.

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