Effect given to the recommendations of the committee and the Governing Body - Report No 380, October 2016

Effect given to the recommendations of the Committee and the Governing Body

1. 18. The Committee last examined this case, in which the complainants alleged that the Public Service (Essential Services) Act, 2008 (PSESA) and the Trade Union Amendment Act, 2008 (TUAA) in Saskatchewan impede workers from exercising their fundamental right to freedom of association by making it more difficult for them to join unions, engage in free collective bargaining and exercise their right to strike, at its March 2014 meeting [see 371st Report, paras 36–43]. On that occasion, the Committee requested the Government to keep it informed of the decision of the Supreme Court of Canada regarding the constitutional validity of the PSESA and TUAA and of any action taken as a result. The Committee also requested the Government to ensure that the provincial government took concrete steps to review the PSESA and TUAA, in full consultation with the social partners concerned, with a view to their amendments in line with its previous recommendations. Finally, it requested the Government to ensure that the provincial government took the appropriate measures, in consultation with the social partners concerned, to create an appropriate appeal mechanism in order to limit the designation of workers as “essential” to the strict minimum necessary to operate the essential services in case of work stoppage and to establish compensatory mechanisms.
2. 19. By a communication dated 2 March 2016, the Saskatchewan Federation of Labour (SFL), one of the complainants in this case, transmitted the decision of the Supreme Court of Canada which dealt with the matters raised in this case.
3. 20. By a communication dated 14 March 2016, the Government of Canada transmitted a reply of the Government of Saskatchewan. The provincial government explains that, on 1 January 2016, it proclaimed into force the Saskatchewan Employment (Essential Services) Amendment Act 2015 (Bill 183). This legislation changed the essential services regime that existed under the PSESA so as to address the concerns of the Supreme Court of Canada and of the Committee on Freedom of Association. The Government explains that the amending legislation:
   • – Removes the definition of “essential services”. The parties are now required to negotiate what they consider to be essential services; for this purpose, guidance can be sought from the ILO definitions of “essential services” and “minimal services”. If the parties are unable to conclude an essential services agreement, either party may make an application to an essential services tribunal, which is an independent third-party dispute resolution body. The application is made to the Chairperson of the Labour Relations Board as well as the minister responsible.
   • – Establishes essential services tribunals that are comprised of the Chairperson or Vice Chairperson of the Labour Relations Board as well as one appointee selected by the employer and one appointee selected by the union. A new tribunal is established for each dispute. The tribunal has the authority to hear an appeal made by either party to the dispute on what services are essential for the particular workplace. The decision of the tribunal is binding on both parties. Once an essential services agreement is negotiated or provided by an essential services tribunal, the parties are free to commence strike or lockout action. At any point, either party can apply to the same essential services tribunal seeking a determination of whether an essential services agreement substantially interferes with the exercise of a strike or lockout.
   • – Creates a binding mediation-arbitration process where the essential services tribunal determines that an essential services agreement substantially interferes with the exercise of a strike or a lockout. The parties are required to submit to binding mediation-arbitration the terms and conditions of the collective agreement. The binding process is restricted to a 60-day period unless the parties mutually agree to a longer time period.
4. 21. The Government of Saskatchewan adds that under this new process it is not treated differently by virtue of its ability to make regulations to prescribe the essential services for executive government.
5. 22. The Government believes that the abovementioned amendments are in accordance with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and reiterates its commitment to work with both labour and employer stakeholder groups in an effort to create laws, policies and programmes that position the province to further economic growth and prosperity while ensuring the protection and security of its citizens.
6. 23. The Committee notes with interest the 30 January 2015 decision of the Supreme Court of Canada declaring the PSESA unconstitutional after concluding that the right to strike was protected under the Canadian Charter of Rights and Freedoms. The Committee notes, in particular, that the Supreme Court declared that the “right to strike [was] protected by virtue of its unique role in the collective bargaining process”, protected under section 2(d) of the Canadian Charter of Rights and Freedoms (paragraph 77). The Court then found that the PSESA was unconstitutional because it impaired “the s. 2(d) rights of designated employees much more widely and deeply than is necessary to achieve its objective of ensuring the continued delivery of essential services” (paragraphs 96–97). The Court gave the Government one year to bring the legislation in line with the Constitution (paragraph 103).
7. 24. The Committee notes with interest that the PSESA was amended in accordance with its recommendations on 1 January 2016.
8. 25. The Committee further notes that as concerns the TUAA, the Supreme Court unanimously maintained the decision of the Court of Appeal that it was constitutional (paragraphs 102 and 175). The Supreme Court concluded that the TUAA did not “substantially interfere with the freedom to freely create or join associations” (paragraph 100) and explained that its conclusion was “reinforced by the trial judge’s findings that when compared to other Canadian labour relations statutory schemes, these requirements are not an excessively difficult threshold such that the workers’ right to associate is substantially interfered with” (paragraph 100).
9. 26. In this connection, the Committee understands that no amendments to the TUAA are currently foreseen. The Committee recalls that when it had first examined this case it considered that “in the particular circumstances of the case, the law stipulating that a trade union must receive the support of 45 per cent of employees before the procedure for recognition as a collective bargaining agent may well be excessively difficult to achieve”. The Committee observed that this introduced change actually meant “that the union needs to demonstrate more support in order for a ballot to be conducted then it will need ultimately to be certified” [see para. 379 of its 356th Report].