iii. collective bargaining before legislation


Issue IIi: PRE-LEGISLATION collective bargaining

does the government have to allow collective bargaining to go ahead, prior to legislating?

This issue confuses me. Although it is sort of implied by paragraph 1(d) of the Re-Amended Statement of Claim, I can’t find any reference in my notes or Labour’s written argument where they actually said there was a duty to let collective bargaining go first.

But, it was part of the decision so …

issue IIi:

Is there a duty for governments to allow collective bargaining to go first before bringing legislation that may affect that collective bargaining??

Paragraph 1(d) of the Re-Amended Statement of Claim states:

Paragraph 1(d) Re-Amended Statement of Claim:

1(d) a declaration that the Defendant violated the s. 2(d) and s. 7 Charter rights of employees represented by the Plaintiff Unions by failing to give them an opportunity to engage in a timely, good faith process of collective bargaining with their respective employers prior to enacting the PSSA

Does that actually say that there is a duty to have collective bargaining before bothering with legislation? I’m not really sure. And I don’t remember that being specifically argument in Labour’s final argument, written or oral. Besides, a duty to hold collective bargaining, like a duty to have pre-legislation consultations, would seem to be contrary to Labour’s interests and arguments. One would be forgiven for suspecting that any pre-legislation collective bargaining this Government of Manitoba might engage in would merely be another pile of disingenuous nonsense.

Furthermore, if Labour did really mean to suggest that there was a duty to allow collective bargaining to go first, then I’m not really sure where the idea came from. It may follow from an interpretation from some of the cases on the ERA, where the Government of Canada let the unions try to make a deal through collective bargaining before they brought in the ERA. Or maybe it comes from International Law.

In any event, this is what Justice McKelvey had to say …

Justice McKelvey:

The decisions, including B.C. Teachers Federation, Dockyards, and Gordon, do not require the government to engage in collective bargaining before legislating. Nor do the decisions in Health Services and Misikew require create such a duty.

Many of the principles discussed above in connection with the duty to consult prior to legislating also apply here. There is no question that collective bargaining can precede legislation. However, that does not mean that collective bargaining must precede legislation.

Accordingly, the Government of Manitoba did not have a duty to engage in collective bargaining prior to legislation and the relief requested under Paragraph 1(d) in the Re-Amended Statement of Claim is denied.

Ok. I’ll buy that. But then, again I’m pretty sure Labour wouldn’t have wanted there to be a duty to hold collective bargaining first, because that would put the unions at a disadvantage.

I think Garth Smorang said it the most clearly during Labour’s Argument (Part II – The Evidence):

Any bargaining that might take place before the law is brought in, cannot be equivalent to true collective bargaining because there is no right to strike.

No leverage for Labour, nothing to trade, nothing to do if the government just says no. Nothing about this, for Labour, says “let’s make a deal.” A duty to hold collective bargaining before legislating would simply give any government an easy way out – let’s “bargain”  and then go ahead with legislation anyway.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

The Trial Begins

Setting the scene in Courtroom #210 as the trial of MFL v. Manitoba begins. We get some background and meet the players.

Opening Statements

The proceedings begin with opening statements. Here, the lawyers for each side give us an outline of the course they are going to take (and why it is going to take 13 days to get there).

The Testimony of Kevin Rebeck

The President of the Manitoba Federation of Labour testifies about consultations between the government and some Labour leaders prior to the PSSA being passed. They weren’t very fruitful, and there seems to have been some question as to whether the government was being truthful.

Passed but Not Proclaimed?

Why is the government waiting to proclaim the PSSA? I thought there was a financial emergency, and dire warnings of our precarious fiscal position. But it has been 2 1/2 years. Don’t they need it yet?

The Testimony of Elizabeth Carlyle

Elizabeth Carlyle gets cross-examined about what happened in a negotiation between CUPE and the Winnipeg School Division. It wasn’t a lot, and it doesn’t sound as though it was very good.

The Testimony of Dr. Mark Hudson

Remember when the faculty at the University of Manitoba when on strike in November of 2016? Dr. Mark Hudson is here to tell us why it happened. And he fills us in on what was happening between the University and the Province behind the scenes.

The Testimony of Tom Paci

Tom Paci appears on behalf of the Manitoba Teachers Society. His story? A quest for justice for Manitoba’s 15,000 teachers and an appeal to the gods of justice – how can we be bound by the PSSA when it is not law?

Indirect Taxing & Discriminatory Taxation

If a tax by any other name would be as taxing, could wage freezes be indirect taxation? And if members of public sector unions are paying more in taxes to support public services, would this qualify as discriminatory taxation?

The Testimony of Michelle Gawronsky

The leader of the Manitoba Government and General Employees Union recounts her experiences since the advent of the PSSA. Everything she says about her automatic approach to understanding concerns and finding ways to solve problems makes me think ” leader, leader, this is a great leader.”

The Super Six Speak

Six experienced union negotiators come to tell us about what has been happening in their collective bargaining worlds. We learn more about what the PSSA means for public sector unions and their collective agreements.

Labour’s Collective Bargaining Expert

Dr. Robert Hebdon testifies about the impact of the PSSA on collective bargaining in Manitoba’s public sector. It isn’t good.

The Testimony of Sheila Gordon

We end the union tales of collective bargaining under the PSSA in passed-but-not-proclaimed limbo with MGEU’s GEMA. Sheila Gordon, MGEU’s senior negotiator was there. And she is here to tell us how those negotiations did not go anywhere.

Labour’s Read-ins and One Last Reveal

You never know what read-ins from discovery might reveal.

The Testimony of Richard Groen

Richard Groen, an Assistant Deputy Minister from the Ministry of Finance, testifies about the Province’s budgets and such.

I was expecting him to demonstrate what all the financial fuss in 2017 was about, you know, why our financial ship was sinking so much that we needed all hands on deck. But …

A No-Compete Treat for the Labour Market?

I don’t understand why the government doesn’t think it should have to compete in its own labour market. It does everywhere else.

The Testimony of Garry Steski

Is it wrong to admit that before this I didn’t really know what a bond market was? Well, I do now, and we learn a little about how Manitoba’s bonds were affected by the fiscal challenges in 2016. Or not.

Bean Counters, Businessmen & Business of Government

If businessmen go into government to bring the principles of good business to government, then shouldn’t they act like good businessmen when they get there?

The Government’s Collective Bargaining Expert

It is best to talk about what happened here as little as possible. So we’ll talk a bit about the importance of turkey instead.

The Testimony of Aurel Tess

How a short day of seemingly tedious technical testimony on Manitoba’s Summary Financial Statements turned into a most unpleasant surprise.

Politicizing the Provincial Comptroller

Ok, Manitoba. Politicizing the Office of the Provincial Comptroller?

That takes the poop-cake.

The Government’s Economics Expert

The government’s economics expert, Dr. Livio Di Matteo, has a motto he lives by: Agimus Meliora – Let us do better.

It makes me wonder, Manitoba, can’t we do better than the PSSA?

Labour’s Economics Expert

Dr. Eugene “the Earnest” Beaulieu testifies that the PSSA is not only not necessary, it is a harsh measure that puts an unfair burden on public employees.

Bye Bye, Dumbo

Let’s take one last look at the Elephant in the Room, and then say goodbye.

The Mandamus Application

A day of argument about whether a statute that says “the Minister SHALL FORTHWITH” means that the Minister can decide not to do something and make up his own reasons for why he shouldn’t.

Decision on the Mandamus Application

Justice Keyser, the judge on the Mandamus Application, has spoken. Here’s a hint – MGEU wins.

Bill 9: We’re Gaming Again …

Before we begin all the good stuff, Garth Smorang has some objections to yet another litigation game the Government of Manitoba is playing.

Labour’s Final Argument

Labour’s last stand. Shannon-the-Hammer and Smorang-the-Smasher pull it all together and wrap it all up.

There is an awful lot of it, so Labour’s final arguments have been separated into four separate posts, which start here …

Butt-First Buffoonery

How did the Government of Manitoba get to such an embarrassing PSSA place? They backed into it.

The Government’s Final Argument

Forget the Elephant-in-the-Room.The Government of Manitoba has got many other ways to try to move the goalposts, as they try to change the game.

Kind of seems like they know they are losing.

Labour Replies

The Finale of the Finale. Labour replies.

(This means we are finally done. At least with the evidence and arguments.)

The Onion of Outrage

Why am I here? Why spend so much watching lawyers and judges and reading endless cases? It’s a pretty simple answer.

I was mad.

The Decision is In!!!

The Honourable Justice Joan McKelvey has ruled. Labour won. The PSSA is unconstitutional.

This is what she decided and why.

What Have We Learned?

There’s lots to discover from considering Justice McKelvey’s decision, and not just for labour lawyers. Let’s take a look at what we have learned.