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Saskatchewan government’s do-over: another version of essential services legislation proposed

strikeAs you may recall, Saskatchewan’s essential services law were found to be unconstitutional in January 2015 because it prevented public sector workers from striking. More specifically, Abella wrote for the Supreme Court of Canada and found that the Public Service Essential Services Act violated section 2(d) of the Canadian Charter of Rights and Freedoms.

The findings were clear – given the historical, international, and jurisprudential context, the ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement was protected under section 2(d) of the Charter. Moreover, the Act infringed section 2(d) of the Charter because it substantially interfered with the right to strike and collective bargaining in general. This was because the Act prevented designated employees from engaging in any work stoppage as part of the bargaining process.

Further, this breach was not justified under section 1 of the Charter. Although the first part of the test could be met because the maintenance of essential public services is a pressing and substantial objective, the second part of the test could not be met. The means chosen by the government were not minimally impairing since they were in no way carefully tailored so that rights were impaired no more than necessary. The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage was unacceptable. Also, there was no opportunity to review decisions about essential workers, and the Act did not involve only essential workers – it went beyond what was reasonably necessary to ensure the uninterrupted delivery of essential services during a strike. If that were not enough, there was no access to a meaningful resolution of bargaining impasses.

In response to the Supreme Court of Canada decision, the government proposed another version of the legislation on October 15, 2015 that would come into force on proclamation. Bill 183, The Saskatchewan Employment (Essential Services) Amendment Act, 2015, proposes a new Part VII in the Employment Act, entitled Essential Services. The Bill received third reading on November 10, 2015 and is awaiting royal assent to become law.

Relevant to this issue are three main Divisions of Part VII in Bill 183: Division 2 discusses essential services agreements; Division 3 discusses what takes place when there is no essential services agreement; and Division 4 discusses what happens if a lockout or strike is substantially interfered with.

The main changes from the last version involve the removal of the definition of “essential services” – the parties would determine what services are essential for their respective organizations.

Furthermore, there would be an Essential Services Tribunal established so that there would be an independent third-party dispute resolution body to render decisions on what are essential services as well as whether an essential services agreement substantially interferes with the exercise of a strike or lockout. The tribunal would be comprised of the chair or vice-chair of the Labour Relations Board and a representative appointed by each of the parties to the dispute.

Another change would involve the provision for binding mediation-arbitration by a three-person panel when an essential services agreement is found to substantially interfere with the exercise of a strike or lockout.

In situations where there is an impasse, the parties would be required to include in the Notice of Impasse whether there are essential services to be maintained in the event of a strike or lockout.

Moreover, the cooling-off period would be changed from 14 days to seven days in cases where essential services are identified. And, there would be a maximum time period of 60 days for binding mandatory mediation/conciliation under the labour relations part of the Act, except where the parties mutually agree to a longer time period.

No job action could occur until an essential services agreement is negotiated or established through third-party dispute resolution.

The question is, are these changes enough to provide the necessary balance of interests when it comes to protecting the operation of essential services and protecting the right to strike witches protected under the Charter?

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015.Read more
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