Newswire

Following the introduction of Bill 85: The Saskatchewan Employment Act, the Saskatchewan Union of Nurses (SUN) commissioned  Dr. David Doorey, from York University to provide an analysis of the proposed legislation.  The House amendments introduced in May of 2013 are included in this review. 

Saskatchewan’s Bill 85: A Rebellion Without a Cause

Professor David J. Doorey, York University

Executive Summary

Introduction

A government undertaking substantial labour law reforms should clearly set out its policy objectives in concrete terms, engage in meaningful consultation to ensure balance and address  the  concerns  of  stakeholders,  and  support  reform  proposals with  careful research. By this standard, the contents of Bill 85 and the process by which they were arrived at leave much to be desired. There was no rigorous or independent study of the possible  impacts  of  the  reforms  on  workers,  employers, unions,  and  the  broader industrial relations system. There was no attempt by the government to develop a package of reforms that would be considered fair and balanced.

The contempt for collective bargaining embodied in Bill 85 is strangely at odds with the major challenge facing Saskatchewan: creating stable, well-paying jobs with benefits that can attract and retain the large number of workers required to meet the province’s labour needs. In this context, weakening employees’ individual and collective rights by undermining   collective bargaining   and   eroding   statutory   protections   is   counter- productive. Unfortunately, this appears to be the primary aim, and likely effect, of the majority of the reforms contained in the new legal regime.

This  review  of  Bill  85  examines  the  stated  aims  and  likely  outcomes  of  the  new Saskatchewan  Employment  Act  in light  of  current  employment  law  and  industrial relations scholarship, and the available empirical evidence. It finds a confusing and ill- considered overhaul of the legal regime governing work in Saskatchewan that promises greater conflict, instability, and costs, and that delivers few benefits from either a legal or a public policy perspective.

One-Sided Labour Law Reform: What Does Bill 85 Seek to Accomplish?

Laws governing work and employment should help to produce decent, safe jobs and a fair distribution of a society’s wealth among its citizens as an important condition for a vibrant and healthy democratic community. This has historically been accomplished in two ways. First, through the establishment and enforcement of a basic legal floor of minimum conditions of work; and secondly, through laws and regulations that facilitate and regulate collective bargaining between employers and employees, and govern the conflicts that arise between them so as to minimize their disruptive and destructive potential.

Both history and employment law scholarship teach us that one-sided and haphazard labour   law   reform   driven   by  ideology   rather   than   evidence   is   disruptive   and unsustainable. It is easy, and tempting, for a majority government to impose an entirely new vision of work law on citizens and industrial relations actors – one that will reward its most ardent supporters. But making such a model function, and sustaining it over the longer term, is considerably more difficult. If the process and substance of the law are obviously one-sided, the goodwill and legitimacy that are such important components of the industrial relations and employment law systems are endangered: conflict escalates, the  willingness  to  compromise fades,  and  short-term  resistance  overwhelms  the potential for actors to work towards longer term, cooperative solutions.

Rather than a balanced and evidence-based public policy initiative to modernize and simplify the laws of work, Bill 85 is quite clearly an ideologically-driven legislative move to accomplish the following:

• Limit access to collective bargaining by making it more difficult for workers  to organize unions and obtain certification;

• Weaken   or   undermine   existing   collective   bargaining   relationships    by: encouraging  smaller  and  more  fragmented  bargaining  units;  lengthening  or removing   ‘open   periods’   so   that   unions   are   under   constant   threat   of decertification and raiding; imposing greater administrative burdens on  unions; imposing  new  limitations  on  the  right  to  legally  withdraw  labour   services; introducing new mechanisms for employers and factions of workers to challenge union bargaining committees with “final offer” votes.

• Give employers greater discretion to control the workplace and their employees by making employment standards more malleable and reducing  the  oversight role of the state.

The government  has  described  its  intent  as  one  of  “modernizing”  and  “simplifying” Saskatchewan’s labour legislation. This review finds little evidence that it accomplishes either of these goals in any meaningful sense. In key respects, for example by eroding fixed labour standards and by encouraging greater fragmentation, conflict, and instability in the industrial relations environment, Bill 85 looks to bygone eras rather than to the future. The vagueness of the Bill means that rather than simplifying the laws of work in Saskatchewan, Bill 85 will introduce a much greater degree of legal uncertainty into labour relations,  with  the  conflict,  distrust,  instability,  and  increased  costs  for  all concerned that this breeds. The nature of the Bill guarantees years of expensive and disruptive litigation, at both the labour board and in constitutional cases.

1.  Labour Relations

“Confidential Employee” Exemption

Bill  85  introduces  a  peculiar  new  definition  of  “confidential  employees”  whose implications remain unclear. It seems likely that the law is intended to extend the number of jobs and employees that may be excluded from the scope of collective bargaining by legal  definition.  Depending  on  how  regulations  clarify  the  law’s  intent,  and  on  the interpretation given to its provisions, a good number of Saskatchewan employees may be stripped of their right to collective bargaining and find that their collective agreement entitlements have been torn up overnight. In addition to the costly litigation that will be required to get clarity on the its implications, this measure will raise important charter issues for employees whose effective exercise of  their rights will have  been made impossible by legislative fiat.

Fragmentation: “Supervisory Employees” and “Partial Raiding”

Bill 85 defines a new category of “supervisory employee” that may have far-reaching implications for some employees’ access to collective bargaining, for the structure of bargaining units, and for the stability of labour relations. Section 6-11 orders the labour board  to  carve  out  “supervisory  employees”  from  all  others  unless  the  union  and employer agree to maintain the status quo. One purpose of this change may be to effectively exclude the new category of employees from collective bargaining altogether by making it much more difficult for them to maintain or re-acquire union representation.

The Bill encourages the fragmentation of bargaining units by making provisions under Section  6-10  encouraging  unions  to apply  to  carve  out  portions  of  existing  units consistent  with  the  new  class  of  “supervisory”  employees.  New  unions  or units representing these employees may proliferate, leading to more collective agreements, more complicated and costly bargaining and agreement administration, and a greater likelihood of disruptive industrial conflict. Indeed, by intentionally promoting bargaining unit fragmentation, the legislation moves in a direction opposite to that which most experts agree reduces the costs and conflicts involved in collective bargaining.

Instability and Mistrust: Open Periods and Final Offer Votes

Bill 85 changes the rules surrounding the “open periods” during which applications to displace (raid) or decertify a union can be entertained. Section 6-10 doubles the time period during which applications to raid can be made, and Section 6-17 all but eliminates the “open period” restriction on decertification applications. The result may well be a near-constant campaigning mode on the part of unions, workers, and employers, with added distraction and conflict, and a corrosion of relationships that promote long-term cooperation and productivity.

A higher frequency of representation ballots can be expected, and without substantial new  funding  to  administer  the  Act, greater  delays  in  conducting  votes  will  result. Together with the government’s decision in Bill 6 to break with the traditional Canadian “quick vote” model, the apparent intent of Bill 85 is not only to encourage raiding and decertification campaigns, but also to give employers more time to use their superior access to, and power over, workers to lobby against collective bargaining and attempt to defeat new certifications.

Section 6-35  permits  an employer,  or a group of  workers representing  at  least 45 percent of the bargaining unit (or 100 employees, whichever is less) to request a vote on the employer’s “last offer” in bargaining. The “final offer” provisions promise to inject greater hostility and mistrust into the negotiation process, and similar laws have been linked  empirically  to  higher  strike  frequency.  The  new  provisions  undermine  the traditional role of elected bargaining committees and will have major and unpredictable consequences for bargaining strategies and relationships. In this case as in others, the likely result will be higher levels of conflict, uncertainty, and instability in Saskatchewan’s industrial relations environment.

2. Employment Standards