Nova Scotia started the whole Public Services Sustainability Act stupidity. According to the evidence, some senior bureaucrat in Nova Scotia told Rick Stevenson that the Government of Nova Scotia believed “that not proclaiming the legislation has worked well in setting the framework of what it believes is its ‘ability to pay’.”
What this guy was really saying is that Nova Scotia passed the Nova Scotian PSSA so that they could get wage restraints, but didn’t proclaim it, so that no union could challenge it.
I still think this is really slimy, although it might be defensible, depending on how they went about it. As long as the Government of Nova Scotia didn’t do anything except point to their PSSA wage pattern as a “general guideline” or “starting point” as opposed to a “legally binding mandate”, they wouldn’t necessarily be already applying their PSSA, or doing indirectly what they cannot do directly.
It’s risky, however, because in the doing, if any employer treated the Nova Scotia PSSA as binding even though it wasn’t proclaimed yet, Nova Scotia would rapidly approach the practical reality that their PSSA was being actually applied whether it was proclaimed or not.
Everything would depend on how each employer tip-toed around the danger. And counting on everyone stepping on the right stones to avoid falling into frothy legal folly is not something I would recommend.
Besides, contrary to whoever it was that said to Rick Stevenson that “it worked well for us”, it turns out that the passed-but-not-proclaimed strategy didn’t actually work that well in Nova Scotia. In fact, from what I can tell, it doesn’t seem to have worked at all.
I don’t have all the details, but it seems that unions in Nova Scotia objected to the PSSA pattern being used as a club, or a threat – if you follow the PSSA pattern, great, if you don’t, then we’ll just go ahead and proclaim it. Right. Sounds to me like the Government of Nova Scotia is still holding a gun to the unions’ heads. Robust collective bargaining? I think not. And apparently, as a result of all the confusion, conflict, and controversy, all collective bargaining in Nova Scotia’s public sector ground to halt, even though its PSSA was also only passed but not proclaimed.
The Government of Nova Scotia eventually had to proclaim their PSSA, but only because one of the unions triggered binding arbitration. Once that happens, there is a risk that there will be a conflict between the wage limits in the un-proclaimed PSSA and the wages the arbitrator may award.
This is probably why the Government of Manitoba tried so desperately to avoid appointing an arbitration board for the GEMA. (See The Mandamus Application and the Decision on the Mandamus Application.) The Government of Manitoba would have been just as worried that having an arbitration go ahead would force them to proclaim the Manitoban PSSA, and take away Heather’s Elephant-in-the Room defence, the one she opened with at trial.