I am satisfied that the PSSA violates Section 2(d) of the Charter based on the facts of this case. The legislation prevents meaningful collective bargaining on monetary issues, an area central to freedom of association and the capacity of the association to achieve a very significant common goal. The overall impact of the legislation on collective bargaining rises to the level of substantial interference. The PSSA is distinguishable from the ERA due to the many differences between them and the very different financial circumstances surrounding the act.
The PSSA is a DRACONIAN measure which limits and reduces a union’s bargaining power. It circumvents and compresses the union’s leverage and inhibits the union’s ability to trade off monetary benefits for non-monetary enhancements, such as job security.
The PSSA has left no room for meaningful collective bargaining on issues of crucial importance to union members. Because members’ priorities cannot be promoted to the bargaining table and considered in good faith, the right to meaningfully associate to pursue fundamental and important workplace goals has been denied. It is not the “fruits” that raises the substantial interference; it is the loss of a meaningful process.
(Remember that according to B.C. Health Services, outcomes aren’t protected, only the process by which you get there. Thus, you aren’t entitled to a particular wage increase, or protected from having no wage freezes. But what you are entitled to, is to be able to ask for, and bargain for those kinds of outcomes in a process of meaningful negotiation.)
The minor improvements achieved through collective bargaining in the 21 agreements negotiated under the auspices of the PSSA reflect the minor degree of bargaining power. Where wages are the top priority for union members, the PSSA negates and diminishes a union’s ability to participate in collective bargaining. With monetary matters excluded from bargaining, it is impossible to have robust bargaining on non-monetary matters either.
Substantial interference doesn’t require total interference, so the fact that some bargaining and some improvements has occurred doesn’t shield the PSSA from this constitutional challenge.
(The whole point of the Other Guy’s testimony was basically– it’s not substantial interference if you can still bargain with what’s left over. Not true. It’s still substantial interference if those leftovers are turds.)
The PSSA’s wage restraints are particularly concerning given the fact that 0% wage increases were negotiated in 2010 with almost all of the public sector. There were trade-offs, and not the certainty that this government desires. It is those trade-offs that this government wants to avoid by legislating its mandates and policies through the PSSA.
(Here we go again – the inescapable conundrum. If you legislate to avoid trade-offs, and to get the certainty that you won’t have to give up anything in trade, then you can’t try to pretend that you aren’t substantially interfering in collective bargaining, because what you are really saying is I don’t want to have to bargain at all, at least not on the important stuff, like wages.)
The 21 agreements that were PSSA-compliant were conditionally ratified (an unusual process), negotiated under duress, and under the threat of the retroactive claw back provisions. This does not constitute fair and meaningful collective bargaining (no kidding) nor does it cure unconstitutional substantial interference.
Some collective agreements, like the Westman Labs agreement, were allowed to include amounts higher than the PSSA limitations, but those were to provide equity in the healthcare field while restructuring was occurring, and those members would still be subject to the PSSA period in the future. Furthermore, some of those were achieved with a “take it or leave it” approach, which is not collective bargaining.
(I don’t think I explained this before. Bill 29, the bill after the PSSA, forced a huge restructuring of unions in the health care sector in Manitoba. The Government of Manitoba said that they wanted to reduce the number of unions that they had to deal with.
Like so much of what the Pallister Government has done in the labour context, it doesn’t make that much sense. Although I suppose there might have been some inefficiencies from having a lot of littler unions, there doesn’t seem to have been much proof that this caused huge problems or lots of additional expenses. Thus, it just seemed like a way to make life difficult for the unions – pitting them against each other to obtain and retain members, creating unnecessary conflict and disunity. It certainly created a huge mess.
Sounds like a good way to go about doing nothing but busting unions to me.)
Just because the unions can still negotiate non-monetary issues, that doesn’t make collective bargaining meaningful. Union representatives must be able to pursue its member’s priorities, which primarily involve monetary gains. Once monetary issues are removed from the bargaining table, collective bargaining has, in these circumstances, experienced substantial interference. This is particularly so when wages are frozen for two years, as demonstrated in the Correctional Officers decision (The Attorney General of Canada v. the Union of Canadian Correctional Officers 2019 QCCA 979). In that case, removing staffing and pensions breached the Charter right to freedom of association, even though all other issues could still be negotiated. (That legislation was, however, saved by Section 1 of the Charter).