Labour’s final argument –

pART iI. EVIDENCE

part II: the evidence

 A cornucopia of wrongdoing

This is long. So grab a coffee and settle in.

And now to the evidence

a. The government didn’t tender any

Garth Smorang takes the podium and begins with an accusation:

Smorang: 

The Government of Manitoba hasn’t led ANY evidence on the development of the Public Services Sustainability Act.

The courtroom goes quiet with this powerful denunciation echoing in our ears, and bouncing around our minds. And the lawyers in the room know exactly why this matters.

The question of why and how the Public Services Sustainability Act was developed comes up a number of times in the legal analysis of this Charter challenge. But, as Garth is reminding us, at no time did the people involved in planning and drafting the PSSA come to court to to tell us what they were doing and what they were trying to achieve.

The closest the Government got was in Richard Groen’s testimony, but since Groen wasn’t involved in the process, and wasn’t even at the Treasury Board at the time, he didn’t have any first-hand knowledge about how the PSSA came to be (and didn’t seem to have much second-hand knowledge either).

This lack of information was probably on purpose, and makes some strategic sense for the Government, but only if they realize that if they copped to those details, it would make them look really bad.

However, this can only ever be a short-term solution due to this thing called “the negative inference”. If you don’t lead evidence on something when you could have, and when you should have (because it’s relevant to the issues in the case), the judge is entitled to make a negative inference – i.e. that the information exists, that it shows exactly what you don’t want it to and works as hard against you as it possibly could, and that’s why you didn’t tender it.

Although it is up to the judge to take the negative inference, it is the lawyers who urge them to do so and why. And this is what Garth is doing now …

Smorang:

The Government called no witnesses that were involved in the development of the PSSA to tell us:

 – Why we needed to have the PSSA.

 – Why they chose its terms.

 – Who they consulted.

The Government just decided they wanted to freeze wages in the public sector, and then came up with the economic justification as an afterthought.

(What? They just wanted to do it, so did it, and figured out the excuses later? Yeah, that’s a good negative inference to take from the absence of those explanations.)

This is followed by thunder about who could have helped answer these questions, but didn’t:

Smorang:

Mr. Richards, Ms. Beaupre, and Mr. Stevenson were all heavily involved in the development of the PSSA.

Ms. Beaupre and Mr. Stevenson testified on the injunction heard in this matter in 2018. The Government could have waived privilege on that testimony. It would have helped us all understand.

And Mr. Richards was the highest government official involved in the planning and decision-making from beginning to end. It would have been useful to hear from him.

Uh-oh, now Smorang-the-Smasher gets personal. Turning towards Stevenson, who is sitting in the front row behind the government’s lawyers, Garth booms:

Smorang:

Mr. Stevenson, who is here today, sat … through … the … whole … trial. He was available. He could have testified. He could have helped us. He could have explained.

(Everyone, including Justice McKelvey, looks over at Rick Stevenson. I’m behind him, so I can’t tell whether he is turning red.  He probably is, as it’s a pretty hard punch, and The Smasher delivers it with scornful indignation.)

So why should anyone care? The argument goes like this.

If the Government of Manitoba had good reasons and sound bases for enacting the PSSA and could demonstrate how carefully its terms were chosen, it would have had people who developed come to court and describe all that to us. But not only didn’t they do that, they also wouldn’t put the privileged testimony from the injunction on the public record of this trial that relates to it.

Government could have, and should have, told us how and why they came up with the PSSA because these issues are relevant to their case. People like Stevenson, Beaupre, and Irving should have scurried down to court and into the witness stand and testified.

They didn’t and as a result, there is no evidence whatsoever that the Government of Manitoba had any good reasons for any aspect of the PSSA, and thus no evidence that the PSSA was enacted in a good faith attempt to meet legitimate public needs.

The negative inference to be taken is that the Government of Manitoba didn’t tender any of this testimony at trial because, one, there isn’t any evidence of good faith and careful design, and two, because the evidence demonstrates that everything they did was bad. 

So, since there is no evidence of good faith, let’s all take the negative inference that the PSSA was made in as bad of bad, bad faith as can be. (I’m in).

B. AN IMMUTABLE DECISION – THE DIE WAS CAST

Uh-oh. Here we go. Ninja-Slasher, Chainsaw-Massacre, Smorang-the-Smasher, Desolator-of-Smaug, rocks the courtroom whenever he gets rolling. It’s as though he grabs you by the ears, bores telepathically into your skull, attaches a steel “you will listen to me” cable to your brain, and then tosses you into the “let’s hear some argument” boat for the long resounding ride he is about to take you on.

You are then compelled to ride the waves of his arguments with the rest of his captives, getting smacked across the face with every unrelenting condemnation, especially this one …

Smorang: 

There was an immutable decision to bring legislation.

THE DIE WAS CAST.

Ah yes. This is how the Government of Manitoba developed the PSSA. They brought wage restraint legislation because that’s what they wanted to do. The die was cast.

Garth starts charging now …

Smorang:

Two critical decisions were made early, as early as the Spring of 2016, when the Pallister PC’s took power:

1.   That there would be wage restraints; and,

2.   That Manitoba would copy Nova Scotia’s strategy of not proclaiming the legislation.

(I see. Not only were they determined to legislate, they wanted to be sleazy about it too).

By early August of 2016, the Government had decided to copy the terms of Nova Scotia’s legislation as well.

On September 21, 2016, the Public Services Compensation Committee decided that they were going to legislate, and told Gerry Irving to bring them some legislative options to look at, including the contents of Nova Scotia’s PSSA.

And by December 14, 2016, Manitoba’s PSSA was substantially developed, and staff turned their focus to Nova Scotia’s “passed-but-not-proclaimed” strategy. Apparently, Nova Scotia thought that this was a great idea.

A senior civil servant told Stevenson that they thought not proclaiming the Nova Scotia PSSA “worked rather well” in setting the framework for wage negotiations, based on what the Government of Nova Scotia claimed was their “ability to pay”.

(I don’t know when Stevenson had that conversation with his counterpart in Nova Scotia, but, according to my research, it didn’t actually work that well. Much like Manitoba, all collective bargaining in Nova Scotia stalled and everyone was upset and angry. The unions went to biding arbitration at the first opportunity, which forced Nova Scotia to give up and proclaim the damn thing.)

I knew about Manitoba just copying and pasting Nova Scotia’s PSSA in content and strategy, but because we didn’t hear any testimony on the development of the PSSA during the trial, I didn’t have much time to think about what the consequences might be. Garth has, however, and has this to say:

Smorang:

Manitoba’s PSSA is strikingly similar to Nova Scotia’s PSSA in both intent and effect. All Manitoba did was make the percentages smaller. Nova Scotia’s PSSA pattern was 0%,0%, 1%, and 2%. Manitoba’s was, as we know, lower: 0%,0%, 0.75%, and 1%.

(Any mean you can do we can mean better. We can be meaner, oh meaner than you.)

There was no attempt to adapt the legislation to Manitoba’s needs. The legislation was not designed to respond to the circumstances in Manitoba. Nor was there any analysis of whether, based on those circumstances, the Government would infringe on Charter rights.

Nope. They just grabbed the Nova Scotia model off the shelf, and applied it to 20% of Manitoba’s workforce.

(OMG. And they wonder why Dr. Hebdon called them lazy)

I see it, Garth. The Government of Manitoba never intended to do anything except legislate wage freezes, whether they needed them or not. The die was cast.

Garth ends with a summary to poke this point home, as good advocates do …

Smorang:

   These are the facts:

 

1.     No non-legislative options were ever considered, or even mentioned. Gerry Irving was asked to investigate legislative options only.

2.     As early as August of 2016, the Government told the University of Manitoba’s Greg Juliano that wage restraint legislation was “highly likely”.

3.     They had drafted most of the legislation by December 5, 2016.

4.     And by December 14, 2016, they had the four-year pattern, and were finalizing the numbers.

5.     The Government’s only priority was certainty. Collective bargaining won’t give us certainty so let’s kick that to the curb.

(Ha, ha, ha … you’re making me laugh again, Garth.)

6.     The Government’s economic analysis was perfunctory and arbitrary. Neither Mr. Irving nor Mr. Stevenson did any financial analysis. They didn’t calculate any costs savings, even though they had documents available to them and could have.

(Sigh. They could have figured out why or even whether they needed it, but they didn’t bother.)

7.     Because Mr. Irving and Mr. Stevenson were pressed for time, there was no back and forth, no discussions about the wisdom of bringing legislation or its contents.

8.     As for Section 14 (the sustainability savings provisions), there were only two documents prepared on how Section 14 would work, and they came to different conclusions. (Oh brother. Typical.) Like all of the sections in the PSSA, Section 14 was just adopted without any further thought, and only because it was in Nova Scotia’s PSSA.

Look at all these facts, and when you do, you will come to only one conclusion: THE DIE WAS CAST.

Oh and let’s not forget that the Public Services Compensation Committee was aware that the PSSA was probably unconstitutional. According to the documents made available during the course of the trial:

• The Government of Manitoba knew about B.C. Health Services.

• They knew that collective bargaining was protected by the Charter.

• They knew that freezing wages was probably going to get them in hot Charter water.

And they did it anyway.

As Garth argued it, the sustainability savings bunkus in Section 14 was just a specious attempt to put something that looked like collective bargaining into the act to stave off a constitutional challenge.

O. M. G. Manitoba. Why must you always embarrass me?

C. PRE-LEGISLATION CONSULTATIONS

1. The Law and Why this Matters

I hate this issue of pre-legislation consultations because it’s an unnecessary mess, an ugly wrinkle in the legal fabric created by judicial accident. It happens, especially with new legal principles. So, let’s see if I can iron it out a little for you.

This all came about because of the tangled legal history of the B.C. Teachers Federation case: British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49.

The B.C. Teachers Federation brought a Charter challenge at the same time that B.C.’s health sector unions did. Since the Health Services case went first, the Teachers case waited until it was done.

After B.C. Health Services was decided in the Supreme Court in 2007, everyone knew that collective bargaining was protected by Freedom of Association, and so the Teachers case revved up and went on. They won at trial, but instead of striking down the legislation, the trial judge gave the B.C. Government twelve months to fix it.

A year later, B.C. came back with almost exactly the same piece of legislation. But they claimed that this time the law was Ok because:

  1. The government had engaged in good faith negotiations with the unions prior to enacting the new legislations (i.e. there had been pre-legislation consultations); and,
  2. One branch of the law’s restrictions was now time-limited instead of permanent.

Although the main issue in the case at all three levels of courts was actually whether the law substantially interfered with the collective bargaining rights of B.C.’s teachers, the first part of this position added the wrinkle of when and whether pre-legislation consultations matter.

The trial judge, Madame Justice Griffin, said pre-legislation consultations aren’t relevant and are never relevant. And besides, your law is still unconstitutional.

She was overruled on that point at the B.C. Court of Appeal, where everybody agreed that pre-legislation consultations are relevant.

But Justice Donald, in dissent, thought that in those consultations, British Columbia government hadn’t bargained in good faith. The majority disagreed, and found that the pre-legislation consultations had been in good faith. For this and other reasons, the majority of the B.C. Court of Appeal decided that the second go-round was not unconstitutional.

The B.C. Teachers Federation didn’t like that, so off they went to the Supreme Court of Canada.

Much as I generally like the Supremes, I think they totally blew it in B.C. Teachers Federation. In a move that almost never happens, the Supreme Court of Canada ruled from the Bench. That is, as soon as the lawyers were finished arguing, the judges said – Ok, B.C. Teachers you win, B.C. Government, you lose.

In legal terms, this is a fairly strong condemnation of the losing side. The judges are implying that the loser’s argument is so bad, that we (the majority anyway) have already made up our mind that you are wrong, and are going to rule against you. Practice, and politeness, however, dictates that we have to at least pretend to listen to you before we slap you down and then boot you out of the courtroom. We did that, and now you’re done. You lose. Get lost.

While it may be efficient, and a useful tool for expressing their disapproval, it means that the Supreme Court didn’t give any reasons. All they said was:

The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald.

Now saying “substantially for the reasons of Justice Donald” implies that the majority in the Supreme Court of Canada approves of most of what Justice Donald said, but not all of it.

Ok, thanks, but that doesn’t tell us which part you agree with and which part you don’t. All that leads to is confusion, and far too many unfortunate opportunities for lawyers to suggest that any part of Justice Donald’s reasons that their clients don’t like just happens to be the very part that the Supreme Court didn’t condone.

Furthermore, Justice Donald went on at some length about whether and when pre-legislation consultations can replace collective bargaining (as opposed to being just a contextual factor to be considered at the end of part two of the substantial interference test, as per B.C. Health Services). And this idea of substituting pre-legislation consultations for collective bargaining was a totally new expansion of the concept.

It would have helped if the Supreme Court had let us know what they thought of this novel interpretation, and/or told us whether this was part of the “substantially” approved portion of Justice Donald’s reasons or not.

Alas, they did not, so no one really knows what the law on pre-legislation consultations actually is at the moment, and we won’t know until another case that raises the question gets back to the Supreme Court of Canada. Sigh.

2. Labour’s Position in the Meantime

In the meantime, it could be either – either pre-legislation consultations are relevant or they are not. What do lawyers do when faced with such confusion? They argue in the alternative.

a) Pre-Legislation Consultations AREN’T RELEVANT

Labour’s primary and preferred position is that pre-legislation consultations cannot be a substitute for meaningful collective bargaining, because there isn’t a right to strike. This is how Smorang put it:

Smorang:

Without the leverage of strike action, workers lose bargaining power, the inherent imbalance in favour of the employer is restored, and the government can just impose whatever terms it wants if the parties reach an impasse.

Thus, for workers, pre-legislation consultation amounts to collective begging, as opposed to collective bargaining. 

(Oooh, collective begging. That’s a good crack. I like that.)

If only the matter ended there. But no. Neither Labour nor the Government of Manitoba nor even Justice McKelvey can pretend that there is legal clarity when there is not. Therefore, we all have to consider the other alternative.

b) If Pre-Legislation Consultations are Relevant, Then They Must be Conducted in Good Faith

In this alternative, if the consultations that took place before the Government of Manitoba passed the Public Services Sustainability Act are relevant, then – did the Government consult in good faith ?

(Keep these two alternatives in mind, because later on Heather Leonoff and Team Pallister accuse Smorang and Carson of saying something completely different, completely made-up, and completely stupid).

i) Good Faith? Gimme a Break …

When the story of the Fiscal Working Group, and how the Government of Manitoba misled, mistreated, and lied to labour leaders came up on the first day of trial during the testimony of Kevin Rebeck, I was nauseated. What kind of icky nonsense is this?

Nonetheless, I assumed that I had gotten it all out of my system. But no. Here, I just got all appalled all over again. It’s Garth’s fault. He is too good at making me mad. Here’s how he did it this time:

Smorang:

What does “meaningful consultation” mean?

– There must be an opportunity to influence the content of the legislation.

– Good faith is critical.

– The government has to explain everything about the legislation has to be explained, especially, why, why are you bringing this legislation? Why do you need it?

– The unions must be given an opportunity to consider all aspects of the legislation.

– The government should be striving for agreement.

– The government should be striving for middle ground.

Hmmm. Well, if that’s the standard, then how did the Government of Manitoba do? Yeah, I know. We already know how this is about to go …

Smorang:

Look at our table of the development events of the PSSA. There were no less than ELEVEN significant events that occurred prior to January 5, 2017, when the Fiscal Working Group met for the first time.

(Eleven??? Ye gods. Oh yeah, you were soooo serious about having an open mind, not.)

That’s just one point of egregious failure. There are of course many more.

ii) The Legal Opinion – You HAVE to Consult

Uh-oh, this is new. And bad.

I knew there was a legal opinion relating to the PSSA floating around somewhere (given by my old friend, Keith Labossiere). It is, of course, privileged, so I didn’t know what was in it. While solicitor-client privilege allows parties to keep certain aspects of the legal advice they receive off of the public record, the Government could have waived it here. They didn’t.

But Garth can still make something of it, more covering the Government of Manitoba in the colour of slime …

Smorang:

If we look at everything the Government was doing in 2016, it is clear that they had no intention of consulting with the unions at all. It was legislation and nothing but legislation. So, what would there be to talk about?

Since it was only after the Government got Mr. Labossiere’s legal opinion that they even thought about meeting with the unions to talk about the PSSA, we can infer that Mr. Labossiere advised the Government of Manitoba that they would have to consult with the unions prior to passing the PSSA.

(I’ll bet that Garth actually knows that Labossiere’s opinion said that, since I’m sure he has seen it. But he has to argue the inference since he can’t just say so in any public part of the hearing because the opinion is privileged.)

Any duty to consult prior to legislating would have been even clearer after the Supreme Court of Canada ruled from the Bench on November 10, 2016 in the B.C. Teachers Federation case.

According to the printed notes of the meeting of the Public Services Compensation Committee that took place on December 14, 2016, the committee discussed the legal opinion, and made a plan for the required consultations with union.

(Uh-oh. They made a plan. This can’t be good. And no, it isn’t. This is where it gets really bad.)

The committee came up with a communications strategy, a structured and scripted outline of what to say to the unions.

And what was that communications strategy?

Focus on the financial situation, and say we are looking for their input. But don’t tell Labour anything about what’s in the legislation. Tell them it’s a blank slate. Legislation is just one of the options, and all options are still on the table.

(Oh go pick a peck of pickled bull-poopies. We know what this really means. Don’t tell the unions anything. JUST LIE TO THEM.)

I wish I could rewind, and re-listen to what Smorang actually said here. I’m sure it was wonderfully blunt and accusing, but I was too busy seething with my own condemnations:

I see. So, Government of Manitoba, you decide you want to bring legislation. When you are almost finished drafting it, you find out that – oops, according to our legal opinion, we need to consult with the unions first.

Ok, so then you think – how are we going to make it look as though we are meeting our legal obligation to consult before legislating, even though we know we are just going to go ahead with the PSSA as it already is, and exactly the way we want it, no matter what the unions say?

I know, we’ll have a structured and scripted outline for Irving and Stevenson to follow, a bucket of blabbering B.S. That’s what passes for “communications strategies” in the Pallister Government.

At this point I wanted to throw myself on the floor of the courtroom and roll around in disgust. Blaaaahhhhhh … Make it stop. I’m going to barf.

iii) Rebeck’s Good Faith

Good guys. Bad guys. The line between them in a courtroom usually isn’t so clear. But here …

Smorang:

Throughout the entire process, Kevin Rebeck, on behalf of the unions, asked for information so that there could be meaningful dialogue.

(We saw some of this at trial, but there is more, oh, so much more. Here’s a list of examples. OMG. Genuine requests in genuine attempts by the unions to understand the problems and thus help solve them.)

Mr. Rebeck was giving it a good try. The union leaders wanted to help, but they needed to know what and why.

And what did the Government say in respond to these requests? – “I don’t know. I can’t say. We’ll get back to you. Can we talk about something else?”

For example, look at these discussions from the March 8, 2017 meeting:

Rebeck: What is the end goal for the Government? To balance over eight years or are they planning to balance in one year? How much are they looking to save with this? We still do not have answers to these questions.

Irving: Can we move on to another subject. You are not getting that number. Presumably finance knows that number. Presumably on budget day the Government will reveal its plan.

And,

Irving: I do not know, Government knows, not in my scope. Let’s carry on with this game.

Rebeck: So legislation is the only option. No other ones on the table?

Irving: I cannot answer that. I am not Government. 

(Whaddya mean, you’re not government? You’re the Secretary of the Public Sector Compensation Committee of the Provincial Treasury Board. If that’s not government, then what the [bleep] are you?)

Or how about,

Rebeck: We need to know the objectives of Government.

Irving: We have been through this game before. Are you saying you are not willing to meet anymore?

(Cheap and sleazy, trying to pretend that the unions are the problem. Boo …)

And finally,

Irving: As I understand, you are asking, requesting, you are demanding to know the goals of Government.

Rebeck: Asking.

Irving: (writes more info) Got that noted. Anything else?

(I dunno how you guys thought that this communication strategy was going to work. You’re going to have a hard time claiming good faith consultations when you are obviously being so dismissive, and rude.) 

iv) The Government’s Bad Faith

That horror done, Garth goes on another massacre – further itemization of the Government’s bad behaviour …

Smorang:

This was a process that, BY DESIGN could not possibly result in meaningful consultation.

The Government of Manitoba ignored every bit of input the unions did try to give. MFL’s power point presentation was given short shrift. The “amazing” presentation by the Nurses Union was never taken to anyone else.

The entire process was a sham. The Fiscal Working Group was told that legislation was not the only option. But that was a lie. Legislation always was the only option. Legislation already was the only option the Government was going to consider. And the terms of the legislation were already set.

There are and were no drafts or any other documentation relating to the development of the PSSA that can show that the Government had an open mind on the legislation or its contents or that Labour had any input to its terms. Of course not. The legislation was already drafted. Its contents were already determined and done.

What’s worse, the Government of Manitoba tried to take Labour’s attempts to understand the issues, and turn them around, blaming the unions for not cooperating, and accusing the unions of playing games.

Is it credible to suggest that there was any opportunity for the unions to sway any aspect of the Government’s decision-making relating to the PSSA? No. Not at all. The decisions had been made long before the unions were even contacted.

We can only conclude that this was just a game. Let’s get the unions to talk about the possibility legislation, so that we can say that we consulted, and our legal duty is done.

Besides all that, let’s not forget that there were 18 unions who didn’t participate in the Fiscal Working Group, and they were, of course, never consulted at all.

v) Bad Faith and Nothing But

Time for a big Smasher Sum-Up, as he ends this portion of the argument …

Smorang:

The Government didn’t want consultations. They only wanted certainty. And the only way that they could get that certainty was by legislating wage restraints.

It is clear that the Government thinks that you can have collective bargaining or you can have certainty, but you cannot have both.

The Government of Manitoba was dead set on bringing in wage restraint legislation, which meant there was nothing to consult the unions about.

Yet, the Government claims that it consulted in good faith and carefully considered workplace issues the unions raised prior to enacting the PSSA.

When asked about that claim at trial, Kevin Rebeck had this to say:

I completely disagree. We were lied to about draft legislation. Our ideas we put forward – PowerPoint, the overtime document – were never seen by decision makers.

Labour leaders came forward in good faith, wanting to problem solve. We were betrayed by government representatives who did not come to the table with those same goals, and did not deal with us in good faith.

This wasn’t good faith consultation. Labour leaders were disrespected and lied to.

All the Government was trying to do was have the appearance of consultation, to use as a shield against a constitutional challenge to the PSSA.

Agreed. We break to catch our breath before Labour’s final argument marches on.

D. NEGOTIATING WAGE RESTRAINTS

Shannon Carson pops up to remind us that you can get wage restraints, and even wage freezes through the collective bargaining process. Problem is, assuming you see this is as a problem, you have to “pay” for it.

Remember that Manitoba’s public sector agreed to two years of zeros after the 2008 financial collapse. They did, however, also get trade-offs in exchange, most significantly on job security.

When Rick Stevenson was asked on cross-examination why this kind of result through proper collective bargaining as opposed to legislating wasn’t good enough, he said …. uh well, he actually said some very long, mealy-mouthed things …

Carson:

Mr. Stevenson was asked why, given that MGEU and other public sector unions had voluntarily negotiated wage freezes without legislation in the 2010 era, the Government chose a legislated route in the form of the PSSA. He answered as follows:

One of the important distinctions is in terms of – you have referenced a number of those collective agreements. None of those, with the exception of the child support workers, were simply two years of zeros. They were all two years of zero followed by what I would consider to be fairly substantial pay increases, and adjustments beyond wages in compensation. So when you add those up collectively for the period that they were covering, four year period as an example, so we use the GEMA as an example, you had zero, zero, two point seven five, two point seven five, I’ll use those one’s because that’s what GEMA agreed to, and the long service step, which equated roughly to two point nine.

So now we’ve got two point nine plus two point nine plus one percent for special wage increases, plus approximately, I’m going to suggest to you those other adjustments for benefits were at least point seven five to one percent of payroll, so the – when you say they were successful at negotiating zeros, there were caveats to that, much beyond, and including a no layoff provision that came with it. Right? So you had that and you put that in the context of what Bill 28 ends up coming up with what’s been referred to as a sustainability period for a four year duration, to provide certainty to the Government about those costs, that those would be the maximum costs. So those are the distinctions.

And so you and I – I won’t speak for you. I could not provide any sort of guarantee that that kind of certainty through that period would exist. What you’ve described to me is something, I’m adding up, two point nine, two point nine, is five point eight plus one and one, seven point eight. Almost two percent over four years, each of four years. Teachers was going two percent at least in each of – a number of years, going back – and you’ve got those documents, you’ve seen that. The numbers will support at least two percent plus whatever other adjustments they were receiving. Those were strictly salary. So all I’m saying is there is a clear distinction certainly in my mind that – and I believe in the Government’s mind in terms of the difference between the two.

Could you have achieved that through collective bargaining? I can’t give you an answer on that, I don’t know.

Eessh. This guy is the king of long-winded and winding answers. Imagine what that transcript must look like. Yuck.

Carson:

Mr. Stevenson was also asked to explain what a layoff “caveat” meant in terms of why the Government chose to utilize legislation instead of collective bargaining. He answered as follows:

Well, what I said was – you had said well, the Government agreed to those mandates, and yes, they did. They also agreed to a no layoff provision for – as part of the negotiated settlement. That’s what I was saying. And you identified two years of zeros.

You said that they were able to negotiate two years of zeros, but they – there was an exchange of that for all of those other provisions that we talked about, including a no layoff provision, certainly with respect to GEMA. I can’t say that for all of the collective agreements.

Blah, blah, blah, blah. I interpret this as just a very long way of saying:

We don’t want to have to bargain for wage restraints because if we do, then we will have to make a deal, and trade something for them.

We want legislation because then we can get everything we want without even trying.

We can get exactly what we want on the money issues and don’t have to agree to anything else.

Or, in other words,

Waaahhhh, collective bargaining is hard … 

e. damage to collective bargaining in manitoba

Right. Now we come to the really long part. This is the itemization of all the damage the Public Services Sustainability Act has being done to collective bargaining in the Province of Manitoba.

This was a hard hour or two. Remember, in effect, an effect, no effect, what? The whole argument about whether the fact that Premier Pallister hasn’t proclaimed the Public Services Sustainability Act means anything to this constitutional challenge? (You can find it in Bye-Bye Dumbo.)

If you do, then you may recall me saying that if the PSSA was having an actual impact on reality, then it  the fact that it wasn’t proclaimed yet mattered not one whit. If the PSSA was already doing actual damage, then it was already ready for a court to order that it be legally stopped.

Naturally, this was what Smorang and Carson were planning to argue all along, which is why we saw so much testimony during the trial about how much the un-proclaimed PSSA was already affecting collective bargaining in Manitoba. It turns out that there was more, extras in affidavits that were filed with the court, but not read out or otherwise covered in detail during live testimony.

OMG. There is so mightily much of it. It was as weary in the listening as it is to go through it all here again.

1. UMFA – 2016

[See the Testimony of Dr. Mark Hudson]

The University of Manitoba Faculty Union had the unlucky distinction of being the first to be affected by the Public Services Sustainability Act, and their experience was probably the worst. The PSSA hadn’t even been drafted yet; the Government of Manitoba was barely beyond the “hey, what a good idea” stage. But they didn’t let that lack of understanding and foresight stop them.

What’s particularly galling about this situation is that both the University of Manitoba and UMFA wanted significant wage increases. U of M profs were arguably the worst paid in Canada, and the University was struggling to get good people to work for them.

Not only that, the University had the money, and had specifically budgeted for a significant recruitment & retention bump (their first offer was a 17.5% bump over four years). UMFA had some of their own aspirations, and both sides were expecting a productive, positive, and pleasant process, one that would result in a healthy salary increase for professors, an increase that had been promised for years, and was long overdue.

Bad timing. That’s all that it was. This wasn’t about budgets, or needs, or fiscal responsibility, or anything else good, responsible governments do. UMFA got hammered simply because their deal was about to get done just as the Government of Manitoba wanted to be announcing their showcase of cuts and restraints to public services in the Province. (Waah. You’ll ruin our press conference.)

Let it also be known that the University of Manitoba is an independent institution, with its own governance, and budget management. The Government of Manitoba may be the primary funder, but that doesn’t mean that it belongs at the bargaining table or in the budgeting meetings.

Yet, as the Dr. Hudson’s tragic tale unfolded, we saw that this is exactly what the Government did. Manitoba threatened to withdraw funding, remove people from the Board of Governors, and cause other harm to the U of M if they didn’t go along with it.

This is a crime. It’s called extortion. Look it up. Oh, forget it. I did it for you:

346 Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

The University of Manitoba begged and begged to be able to go ahead without the PSSA wage restraints. They knew it would be extremely damaging to their relationship with their faculty as well as to their reputation generally.

We weren’t given all of the details, but we know one thing – all of these entreaties fell on deaf ears. Who cares about the University of Manitoba when there is crowing about cutting public services to be done? Furthermore, the Government wouldn’t even let the U of M tell UMFA why and what was going on.

 

Smorang:

This was the result of an arbitrary directive, bad faith behaviour from the Government of Manitoba in furtherance of its own interests without any regard to the needs of the University of Manitoba. (Indeed.)

The Government was forceful and secretive, and went ahead knowing how destructive their actions would be.

They crippled the bargaining process, upending it mere days before the strike deadline expired. Greg Juliano, who was negotiating on behalf of the U of M, said that it seemed as though the government wanted a strike.

UMFA was denied their rights to meaningful collective bargaining, as the Government of Manitoba significantly disrupted the power balance between this employer and its employees.

The only conclusion is that the Government of Manitoba substantially interfered in the UMFA 2016 negotiations, and should pay damages accordingly.

Here, here.

4. BUFA – 2019

Smorang, with the benefit of all of the written affidavit evidence as well as the additions we saw at trial, gives us a synopsis of the Brandon University Faculty Association negotiations that occurred in 2019 …

Smorang:

It started with the lead negotiator for Brandon University acknowledging that this was a “unique” round of bargaining, because of the PSSA. There was no veil of secrecy here. Everyone at the table knew that the PSSA would be applied.

Everyone also knew that this was going to result in about a 10% net loss of income over four years, and that, like the University of Manitoba, this would be disastrous for recruiting and retaining faculty members.

BUFA tried to get creative by proposing a five-year contract, which would comply with the PSSA for the first four years, and then give significant wage increases in the fifth year to make up for it.

The BU’s lead negotiator asked Brian Ellis (Assistant Deputy Minister for Labour Relations, who took over for Rick Stevenson), if they could do this. He said no.

BU’s negotiator seemed genuinely upset and empathetic about the situation and said that she and her team had “lost sleep” over the situation.

In the end, the minor gains BUFA was able to achieve were of limited value, and the collective agreement was ratified under duress.

Agreement was only possible with a conditional ballot and section specific reopeners, which allowed BUFA to reopen certain monetary provisions if the PSSA was found to be unconstitutional.

So, was this substantial interference?

Yes, says The Smasher. The PSSA smashed the balance of bargaining power between Brandon University and its faculty.

And the Government of Manitoba also extended this interference to the fifth year, outside of the provisions of the PSSA.

9. MB LIQUOR & LOTTERIES – 2018

This was Miranda Lawrence’s negotiation. Another one of the Super Six who spoke.

The main issue in this negotiation from the union’s perspective was job security. Of the 1265 employees in the bargaining unit, 762 work part-time, 223 are casual workers, and only 280 work full-time.

For these employees, layoffs and contracting out were the highest priorities. There was a real fear of job loss and privatization by the Government. Although the MGEU wanted much stronger protection on job security, all they were able to get was a minor extension on one category of employees, something which affected a grand total of 7 employees.

Lawrence testified that it was embarrassing to have to take a contract with so few improvements for their members.

Dr. Hebdon, Labour’s collective bargaining expert, testified that this showed just how little bargaining power the MGEU had in these negotiations as a result of the PSSA.

10. DAKOTA OJIBWAY CFS – 2016

This episode was notable in one major respect. The negotiator for the Dakota Ojibway CFS was probably the clearest and most explicit about what the Government of Manitoba was doing, and threatening to do, to any employer that dared to defy the Public Services Sustainability Act:

The lead negotiator for the employer made the following statements about the PSSA at the outset of negotiations:

– The Government has passed legislation with ‘wage controls’, ‘wage amounts’ and a ‘dictated settlement’.

 – Total compensation for the contract “needs to be at zero”.

If a collective agreement exceeds the PSSA, there will be “fines”.

[Paragraph 746, Plaintiffs’ Written Argument]

Ok, are you Orwellian mouthfuls still going to argue that you weren’t “applying” the PSSA before it was proclaimed?

Good luck with that.

11. MGEU’S GEMA – 2019

Shannon Carson ended this part with a note on the GEMA negotiations and the then-outstanding application for mandamus to order Minister Scott Fielding to appoint an arbitration board.

Like the others, this is a prickly puzzle piece in this perplexingly unpleasant picture.

It has, of course, already been covered (see the Mandamus Application and the Mandamus Decision), so I won’t repeat the details here.

For these purposes, suffice it to say that things like: insisting on the PSSA; Brian Ellis’s threat that if the MGEU didn’t continue to negotiate now, the Government would take away any and all gains once they went to arbitration; and, the resulting refusal to comply with the request for arbitration by the MGEU, are pretty clear demonstrations of difficult it is for anyone to conduct collective bargaining with the PSSA Elephant-in-the-Room looming over everything.

2. UMFA – 2017

[See the Testimony of Dr. Mark Hudson]

One of the worst things about the UMFA 2016 bargaining process was that, because they only agreed to a one-year contract, they had to do it all over again the next year.

There was less drama, but the process was just as painful and just as unproductive. The University of Manitoba took the position that they had to strictly comply with the Public Services Sustainability Act (even though it hadn’t been proclaimed), and slavishly followed it.

The U of M relied heavily on the retroactivity provisions, especially the ones that said that if they give anything higher than the PSSA, it would create a personal debt that employees would have to pay back.

No matter what UMFA did, the U of M wouldn’t budge. 0%, 0%, 0.75%, and 1% wage increases was all that the PSSA allowed, and so that was all that they would do.

What’s worse, yes there was worse, is that the Government of Manitoba was still pulling the university’s strings, and wouldn’t even allow them to agree to a 3% wage increase in the 5th year, the year after the PSSA pattern expired, and would no longer apply. What? Applying the PSSA beyond its legislated scope? What the?

The negotiations went nowhere and this, as Garth tells us, was a deal done under duress. UMFA already knew that there was no point to a strike, since it wouldn’t and couldn’t change anything. UMFA members ratified the 2017 deal, but by a conditional ballot only – we are being forced into this by the PSSA, so if it is found to be unconstitutional, we will be undoing this conditional consent.

Salvaging the process to get a deal is not the same thing as bargaining. UMFA got just enough to get a conditional ratification, with a faint hope that salaries in the 5th year might be reopened.

As a result, it seems pretty clear that UMFA and the University of Manitoba couldn’t engage in meaningful collective bargaining because of the PSSA.

5. WESTMAN LABS – 2017

Ooohhh, I didn’t have all this background before, and I am a little horrified as Shannon Carson takes over to tell us how this one played out.

Carson:

There were three separate collective agreements with DSM (Diagnostic Services of Manitoba). Although they covered the period from 2014-2018, all three renewals were still open for negotiation in 2016. Since employees in all three bargaining units do the same type of work, all three collective agreements have always had the same rates of pay.

The Province of Manitoba’s Provincial Health Labour Relations Services (PHLRS) negotiates for DSM in all three bargaining processes. By August of 2016, the first two agreements were basically done, and the PHLRS notified MGEU that they were ready to start on the third one, the Westman Labs agreement, and that the mandate for wage increases would be the same as the other two. In this instance, it was 7% increase over four years.

MGEU and the PHLRS agreed to start bargaining on October 26, 2016. But, on October 24, 2016, PHLRS cancelled the meeting saying only that “issues have arisen”.

It turns out that the real reason PHLRS cancelled the meeting was because the Orwellian mouthfuls on the Public Services Compensation Committee had decided that the 7% increase was to be withdrawn and replaced with, at a minimum, a one-year contract with a 0% wage increase. Why? Because they wanted to be consistent with their planned PSSA(Let the disgusted head-smacking begin.)

A few days later, UMFA and the University of Manitoba announced that their negotiations had failed, and that the Province had made it clear that it was imposing a pause on all wages throughout the public sector and expected everyone to comply.

MGEU was a little surprised to be hearing about this in the news instead of from the Government, and was very concerned about what this might mean for their upcoming bargaining processes, including Westman Labs.

PHLRS stalled on the Westman Labs deal until March of 2017, when the Public Services Sustainability Act was introduced in the legislature as Bill 28. And, on April 25, 2017, the Public Services Compensation Committee gave the PHLRS a PSSA mandate for a four-year contract for Westman Labs.

So, now the PHLRS and MGEU were faced with negotiating a parallel deal on decidedly different terms than the other two. And the PHLRS wasn’t willing or able to offer anything to the Westman Labs employees except the (putrid, to me anyway) PSSA pattern of 0%, 0%, 0.75%, and 1% over four years.

Knowing by this point that a constitutional challenge to the PSSA was in the works, MGEU ratified the Westman Labs deal with another conditional ballot.

Well, that blew up the workplace at Westman Labs, as you can imagine. People were outraged, and justifiably so – why the hell should they get 5.25% less in wages than their counterparts just because their agreement happened to happen a few months later than the other two?

A few employees even filed a complaint to the Labour Relations Board, claiming that MGEU was negligent for not negotiating earlier. The complaint was dismissed, but it does demonstrate how much damage this PSSA-ing did.

OMG. I’m already disguste. But hold on … let’s hear how they “fixed” it …

Carson:

A year later, in 2018, Sheila Gordon, MGEU’s Director of Negotiations, read affidavits that Elizabeth Beaupre and Rick Stevenson had filed in this lawsuit, where they said that they recognized the “inequities” that had occurred at some of the bargaining tables and were reviewing collective agreements in the health sector to address them.

Gordon wrote to Beaupre to express MGEU’s disappointment that the Government was recognizing the inequities now, when they certainly didn’t care about the glaring inequities involved in the Westman Labs agreement when it was being negotiated. (Yeah, and can I add – why the [bleep] did Sheila Gordon have to find this out by reading affidavits?)

Gordon also pressed Beaupre to correct the Westman Labs problem, and fix it so that the Westman Labs employees got the same 7% increase as everyone else that works for DSM.

This was on March 13, 2018. It took over seven months, and many inquiries and reminders from Gordon before the PHLRS finally agreed, on October 23, 2018, to give Westman Labs the same deal as the other two bargaining units.

Oh brother (deep sigh, exhale). So, Government of Manitoba, you decide you are going to “pause” public sector wages. You are so intent and tunnel-visioned that you start forcing the PSSA pattern on everyone, before it’s even drafted, and without any regard to the harmful, and unjust consequences that may result, even when that harm is staring you in the face and even the people on your side recognize how bad it is.

Then, when you get taken to court, you suddenly claim to be “concerned about inequities”. Except you are so concerned, you don’t even try to fix them, don’t bother contacting the victims to discuss a cure, and when the MGEU ask you to correct the problem in one of the most egregious examples, it takes you more than seven months until you actually do it.

Concerned about inequities? You’ll have to forgive me, but I don’t take you seriously. And neither does Shannon Carson.

Carson:

The Government of Manitoba now claims that modifying the Westman Labs agreement is a “demonstration of the goodwill of the Government”. But where was that goodwill for the two years it took before they agreed to change it? Why wasn’t this goodwill there when they started Westman Labs in the fall of 2016? Why did it take until the fall of 2018 to correct it? (And why was it only because Sheila Gordon guilted them into it.)

This isn’t collective bargaining. The Government decides yes, the PSSA applies, or, the Government decides no, the PSSA doesn’t apply.

And, it turns out that the Government is intending to apply the PSSA to the next Westman Labs agreement anyway. So Westman Labs isn’t excused from the PSSA. Its application to them is just delayed. (Oh well, at least then the PSSA will apply to all three DSM agreements equally.)

This next bit didn’t come up in cross-examination, so this is another thing that comes as news to me.

Apparently, Leonoff and her team argued in their written submissions that if the Westman Labs didn’t like it, they could have gone on strike. (They actually argue this a lot in their oral arguments. And of course, I’ll have much more to say about it then.)

Carson:

The Government of Manitoba now claims that there was no interference in the Westman Labs collective bargaining, because they could have gone on strike.

First of all, no one cross-examined Michelle Gawronsky or Sheila Gordon about whether or why the MGEU didn’t call for a strike over the Westman Labs issue. Therefore, it is too late to suggest that MGEU could have made different decisions now.

Besides, how can the MGEU go out on strike? What good would it do? A strike won’t change the law, and that law renders any strike a nullity.

Shannon’s conclusion? The Westman Labs negotiations demonstrates that the Public Services Sustainability Act substantially interferes with collective bargaining in the Province. A belated correction two years later, doesn’t change that, and doesn’t undo all the damage they caused in the meantime.

Yeah, I’m inclined to agree.

3. MANITOBA TEACHERS – 2018

[See the Testimony of Tom Paci]

Like the University of Manitoba, the Manitoba School Boards Association is supposed to be an entity independent of the Government of Manitoba, although schools receive a significant proportion of their funding from the Province.

And, like the University of Manitoba, the MSBA has its own governing structure and each school board manages its own budget.

And finally, like the University of Manitoba, the MSBA prides itself on its exceptional relationship with the Manitoba Teachers Society, and has a well-established, long-standing practice of successful and productive bargaining at 38 tables, one for each of Manitoba’s school divisions.

As we revisit Tom Paci’s testimony, we are reminded that, according to the numbers, most of the MTS/MSBA negotiations are remarkably successful, even though each school division negotiates a separate agreement in a separate bargaining process.

Over the 18 years prior to the 2018 round, 263 collective agreements were settled by agreement, while only 10 went to interest arbitration. (For the mathematicians among you, that is a 96% success rate). And there hasn’t been any interest arbitration since Seven Oaks in 2012.

Neither side ever wants to go to interest arbitration. Why? It is very expensive, sometimes costing up to $100,000 for each separate proceeding. (Again, do the math. For 38 tables, that is $3.8 million in unnecessary expenses. Hard to qualify that as fiscal responsibility.)

Eeewwww, yuck. Now we have to get reminded all over again about the stupidity of the Minister of Education’s press conference, you know, the one where the Government said –

Hey Manitoba School Boards, do we have a deal for you. You can’t raise your property taxes more than 2% per year.

What? You need more? Pshaw. Look at all the money we are saving you in teacher wages through the Public Services Sustainability Act.

Oh, wait, the PSSA isn’t in effect yet? Uhm, yeah, well the PSSA savings are …

Leaving aside how this destroys the defence that you cannot challenge the PSSA legally because it isn’t in effect yet, it was also an exceptionally effective way to toss a grenade into the already uncertain bargaining climate between the MTS and the MSBA.

As one of the reporters put it, if the wages are set then what is there for the teachers to bargain for fiscally speaking? And while the Minister was eager to suggest that this was exactly why the Government was setting the 2% restriction now – so that the school boards wouldn’t have to negotiate wages, the Government of Manitoba seems to have been unable to anticipate that the inevitable outcome would be that there would be no collective bargaining for teachers in Manitoba at all.

Everyone at the table knew it. And in fact, it was the school boards, as opposed to the teachers who said – forget this. Even trying to bargain in this context is going to be too harmful for our relationship.

So, the new reality of collective bargaining for teachers in Manitoba? Prior to the PSSA being passed? Success rate of 96%. After the PSSA is passed, proclaimed or not? Success rate of 0%.

As of today, there is no collective bargaining for Manitoba’s 15,000 teachers at all. Two tables tried briefly, and went swiftly to interest arbitration. The rest are going to wait it all out – the PSSA, the legal challenge, and the ever-fainter hope that the Pallister Government might have more sensible goals to pursue.

And with that the Province managed to destroy a relationship that’s been happy and harmonious relationship for about 65 years.

Well done.

6. EMS SUPERINTENDENTS – 2017

More new information, as we move into the heavy-handed, hard-ball phase of PSSA negotiations.

In July of 2017, a bargaining unit of Southern Health EMS Superintendents were initially offered a new deal for their 2015-2018 collective agreement. It followed the PSSA pattern of course.

Problem was, that this would mean that the EMS Superintendents would end up making significantly less than the paramedics they were supervising.

Still, the PHLRS (again) stuck to the PSSA pattern from July 6, 2017 until February 8, 2018, when they suddenly made a “take it or leave it” offer of 2%, 2% for 2016 and 2017 plus market adjustments for 2015-2017.

The offer was only open that day, giving the MGEU only a few hours to decide whether or not to accept it.

What’s worse (there always seems to be a worse), the PHLRS wouldn’t even guarantee in writing that these increases, over and above the PSSA pattern, wouldn’t be clawed back under the retroactivity provisions of the PSSA – Section 15 and Section 28.

As Carson puts it, this isn’t what free and fair collective bargaining looks like. Agreed.

7. HOSPITAL TRADES – 2016

Darlene Tremblay was cross-examined with the rest of the Super Six (see the Super Six Speak). And so, like the rest of them, this is the first time we get to hear her full story.

Tremblay negotiated on behalf of the MGEU for hospital trades workers at St. Amant, St. Boniface Hospital, and Victoria General Hospital for their collective agreements covering 2016-2019. Since these units typically receive the same deal that a larger bargaining unit of trades workers doing pretty much the same work does at Health Services, both MGEU and the PHLRS agreed to wait until the deal at Health Sciences was concluded.

In the middle of this limbo, and out of the blue, the PHLRS contacted Tremblay on April 20, 2018, and asked to proceed “quickly” with the negotiations for all three units. The PHLRS negotiator said that there was a “small window of opportunity” to make a deal for wages increases of 2%, 0%, and 0%.

The parties met May 8-10, 2018, where this offer was repeated, and MGEU was told that they had to take it or leave it, and that any agreement would have to be ratified by May 18, 2018. The PHLRS also warned that MGEU would not get another chance to get the 2% in the first year.

MGEU didn’t get any opportunity to present its own proposals, much less have any opportunity to give input on the Government’s position. Tremblay testified that she had never seen any attempts to “negotiate” in this way before.

Union members were angry, and this was another agreement ratified with a conditional ballot.

As Labour’s lawyers put it in their written submissions:

PHLRS making “take it or leave it” time limited employer offers, without even bothering to receive union bargaining proposals, is not a good faith bargaining process.

PHLRS dangled the “carrot” of a time limited 2% retroactive wage increase, threatening, without explanation as to why, that it would disappear if not accepted.

This does not represent a good faith collective bargaining process.

To quote Justice Lederer in the OPSEU decision, this set of negotiations was “more capitulation than negotiation.”

 [Paragraph 634, Plaintiffs’ Written Argument]

More capitulation than negotiation indeed.

Of course, capitulation as opposed to negotiation is the whole point of the “take it or leave it” strategy.

8. UNIVERSITE- COLLEGE ST.BONIFACE

This was Marc Payette’s story. (Payette was also part of the Super Six).

Payette negotiated on behalf of three MGEU bargaining units at Universite-College St. Boniface for a renewal of their collective bargaining agreements covering 2016-2020.

In 2010, these units accepted two years of 0% wage increases due to the financial situation caused by the 2008 financial crisis. But, as part of this deal, they got a guarantee that there would be no layoffs in exchange.

As negotiations opened in 2016, it was exactly the same parties, in virtually the same circumstances, except for the fact, now obvious from the economic testimony, that there wasn’t any existing financial crisis, although the Government of Manitoba was claiming that there was one.

Yet, in this round, the Universite-College St. Boniface workers had to accept 0% wage increases AND 0% increases in job security. And yes, it was all because of the PSSA.

There can be no better example of how the PSSA reduces the union’s bargaining power, upsetting the balance, and tilting in favour of the employer.

As a result, layoffs have occurred, layoffs that would have otherwise been prevented if the union had been able to negotiate for better job protection.

I’m going to take it from all of the voluminous above that there can be no other conclusion than:

The Public Services Sustainability Acis already having an actual effect on collective bargaining in Manitoba regardless of whether the damn thing has been proclaimed or not.

And I’m guessing that most reasonable people will agree.

F. grand finale – SUBSTANTIAL INTERFEREnce

Here we go. Smorang-the-Smasher sums it all up, punching through all the points about what these and other episodes demonstrate about all the damage to collective bargaining caused by the Public Services Sustainability Act.

But he starts with something that takes me off guard, and reminds me why I’m here. Because of the delays caused by the PSSA, as people decided to go to arbitration, or to wait for the end of this court challenge, or to just not bother bargaining at all, guess how many people in Manitoba currently don’t have a contract? It’s a lot.

Here’s how the numbers work out:

Smorang:

There are about 111,6000 employees in the public sector.

Less than 9,000 have a current collective agreement (and this includes agreements that could only be ratified with a conditional or otherwise objecting ballot).

Which means that around 103,000 workers in Manitoba do not have a current collective agreement.

Sounds like substantial interference to me. 

Smorang:

These delays are like nothing we have ever seen before.

Instead of engaging in a fruitful process with a long history of success, nothing is being done.

Collective bargaining in Manitoba has ground to a halt.

Collective bargaining in the public sector in Province of Manitoba prior to the PSSA? Almost 98% successful, eventually. (It is not unusual for new collective agreements to be negotiated and completed months, or sometimes years after the existing one expires, and then made retroactive).

Collective bargaining in the public sector in the Province of Manitoba after the PSSA? Less than 8% successful, and many of those were either made before the PSSA came into force and haven’t expired yet, or were made under the PSSA with protests of duress.

With those kinds of numbers, how can you possibly argue that collective bargaining is substantially impacted, if not substantially destroyed, as a direct result of the Public Services Sustainability Act?

You can’t, although I suppose if you are the current Government of Manitoba, and you aren’t ever willing to change course, your Constitutional Law Section is going to have to try.

Some of Garth’s other points echo what we have already seen:

  1. Public sector employers are taking the position that they are bound by the PSSA, even if they haven’t received specific direction from the Public Sector Compensation Committee.
  2. Public sector employers that have been given direction from the Public Services Compensation Committee are getting those instructions with some fairly heavy threats of retaliation if they don’t comply.
  3. Public sector employers are therefore forced to go along with the PSSA principles, even when they don’t agree with it, and even when it hurts them as much as it hurts their employees (see the University of Manitoba in particular).
  4. Outside of health care, the number of new collective agreements that have been allowed to exceed the PSSA restrictions is exactly ZERO.

Oh, but there is more …

Smorang:

The Government is guilty of bad faith in applying the PSSA and the way that it has been applied.

Nobody is sure who it applies to and who it doesn’t. And when employers seek guidance from the Government, they get no response. Some people just cancel bargaining because they don’t know what to do.

Why does the Government make people wait in confusion? Why not clarify? Especially when the Government knows that they are causing unnecessary delays?

Besides, the Government itself actively contributes to the uncertainty. As we saw with the Arlingtonhaus negotiations, Teri Kindrat told the employer that they had to follow the PSSA, but that they shouldn’t tell the union about it.

The CEO of Arlingtonhaus called this disingenuous. And it is indeed disingenuous not to acknowledge that the Government is intentionally applying the PSSA. And why? Because they do not want to show their hand – we want to pass but not proclaim the PSSA so that we can apply it, while still claiming that it cannot be challenged because it is not yet law.

And look at what happens when people find out that they are not bound by the PSSA after all?

  1. Assisted Living LocalAfter a year of asking whether they were covered by the PSSA or not, and waiting for an answer before beginning to bargain, an Assisted Living Local of UFCW 832 found out through an affidavit of Rick Stevenson filed in this lawsuit that they weren’t covered. They immediately negotiated a new deal with parameters significantly above the PSSA limitations.
  2. ArlingtonhausThe Arlingtonhaus negotiations dragged on for over a year. As soon as they were told that the PSSA didn’t apply to them, a collective agreement with a 4.5% wage increase (well above PSSA pattern) was concluded in two months.
  3. CUPE & ExtendicareCUPE and Extendicare were also stalled for over a year. Extendicare was told that they were covered by the PSSA. The parties only found out through an affidavit of Elizabeth Beaupre filed in this lawsuit that they weren’t. Free of the PSSA yoke, they agreed to a 5.2% wage increase over four years.

And finally, and most significantly, in CUPE & Revera, the union wanted parity with other Revera employees at other facilities in Winnipeg. Revera was initially prepared to agree to that, but pulled that offer back when Bill 28 (the PSSA) was introduced in March, 2017.

Revera asked the government whether they were covered by the PSSA, and bargaining sessions scheduled for April and May of 2017 were cancelled while Revera waited for a reply.

Revera never got a reply, but continued to make proposals that matched the PSSA pattern, and when the parties went to conciliation in November of 2017, Revera said it was bound by the PSSA.

In January of 2018, Revera now said that it was never unsure about its position under the PSSA. The PSSA did apply to them. And, they were not waiting for clarification or confirmation from the Government.

Like too many others, CUPE only found out that the PSSA didn’t apply to them because of Stevenson’s Affidavit filed in April of 2018. The parties began negotiating in the normal and usual manner, i.e. no worries or restrictions from the PSSA.

By November 18, 2018, CUPE & Revera reached a deal which included a wage increase of 8.5% over 5 years, as well as significant benefit increases, all of which would have been prohibited under the PSSA.

Holy crap. Look at what happens. If the PSSA applies, nothing but trouble negotiating. As soon as they find out it doesn’t apply, BOOM, a nice, healthy, happy deal reached, in a few months, even after over a year of delay.

Garth doesn’t think much of what he calls “special deals” either …

Smorang:

What is also unfair, is unequal treatment. And unfair, unequal treatment is also bad faith.

Twenty-one unions, including UMFA and BUFA, were forced to agree to have their wages frozen under the PSSA, while 19 others received “special deals”. Most of these were health care deals.

But these were not the result of normal bargaining processes. The Government made the employers force a deal at the table, making time limited offers that had to be accepted that day.

There were no written assurances that these gains wouldn’t be clawed back once the PSSA was proclaimed. And, the unions were warned that if they didn’t accept this better-than-the-PSSA offer, there probably wouldn’t be another one.

The Government of Manitoba suggests that these special deals show that they are willing to be flexible with respect to the PSSA, and can be expected to act in good faith, and recommend regulations under the PSSA to validate these and similar deals, except the PSSA doesn’t have any such regulations, and besides, this conduct isn’t exactly good faith.

In all cases, the unions are required to deal directly with the Government of Manitoba instead of their employers. The Government has all the power, and decides, unilaterally (and arbitrarily) who gets spared the PSSA burden and who doesn’t.

In the words of Justice Lederer in the OPSEU decision, this is capitulation not negotiation. And capitulation cannot and never will be meaningful collective bargaining.

It’s really fun to write these words in the Smasher’s voice. He does have the grey-haired mastery of effective advocacy, man-handling your emotions while ensnaring your mind. I think of all the years I spent coaching little baby lawyers about civil litigation. What I wouldn’t have given to have given them an hour or two of this cabaret of incomparable competence.

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So. we are done for the day, and we are done, finally, with this very long section on the evidence. Push on through, as Labour’s argument continues with:

PART III. EXPERTS 

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.