Carson:

The Public Services Sustainability Act substantially interferes with collective bargaining in Manitoba in so many ways:

1. All wages are fixed to a four-year pattern of 0%, 0%, 0.75%, and 1%.
2. Section 14 doesn’t and cannot work, and so cannot offer any form of collective bargaining.
3. There was no free and fair or in good faith bargaining that occurred before bringing in legislation.
4. The Government legislated first, and let “bargaining” happen after, which meant that there couldn’t be any bargaining at all because of the PSSA‘s terms.
5. The Government failed to give priority to collective bargaining, as required by Canadian law and international law, and as governments did successfully in 2010 in response to a genuine financial crisis.
6. Wages, which are almost always a top priority for unions, are all off the table.
7. The PSSA upends the entire process, fixing wages and pre-determining all monetary issues, which are usually left to be agreed on at the end.
8. Eliminating all monetary issues reduces the unions ability to trade for other concessions, reduces the unions’ bargaining power, and most significantly, prevents them from being able to trade lower wages for better job security.
9. The Government intended to alter collective bargaining, giving itself and all publicly funded entities guaranteed wage freezes without having to give anything up.
10. As a result of the PSSA, collective bargaining in the Province has become futile.
11. Under International Law, three years of wage limitations is too long. The PSSA lasts for four.
12. There are no ease-up provisions – sections to reduce or end the PSSA restrictions if the economic situation gets better before the four-year term is over.
13. Because the PSSA period floats to whenever the next collective agreement comes up for renewal, the PSSA acts well into the future. For example, the final agreement the PSSA will apply to will not come up for renewal until 2021, and will cover the period from 2021-2025. (How can the government possibly know that they will still need PSSA restrictions this far off in the future?)
14. The whole Fiscal Working Group process was disrespectful to unions and designed not to do anything useful.
15. All the PSSA has done is create dissatisfaction and considerable cynicism about collective bargaining and labour relations in the public sector.
16. Not only is the PSSA likely to have a chilling effect on collective bargaining after the PSSA period is over, as Dr. Hebson tells us, we have already seen the Government of Manitoba “applying” the PSSA to the fifth year, by not allowing employers to negotiate wage increases in the year following any PSSA pattern.

Carson:

The Government of Manitoba has let the PSSA linger in its passed-but-not-proclaimed state for more than 2 ½ years. They based it on the Nova Scotia model, as well as Nova Scotia’s strategy: passing but not proclaiming the PSSA is a way of getting what they want without having to proclaim it.

As long as this strategy works, as people comply with the PSSA even though it has not been proclaimed, the Government of Manitoba need never proclaim it, because the Government can get everything it wants without having to face a legal challenge.

If so, the PSSA will never be proclaimed, and can never be challenged.

(Yeah, that seems to have been the shady point of this passed-but-not-proclaimed business in the first place.)

Yet, there is extensive evidence that the PSSA is already having an actual effect on collective bargaining processes throughout the public sector.

As we saw in the Arlingtonhaus negotiations, the PSSA speaks loudly through the Province, and requires immediate compliance with its wage restraints due to the retroactivity provisions, even though it has no legal force or effect.

Bringing legislation was a strategy. And not proclaiming the PSSA was also a strategy.

The Government of Manitoba is acting through the machinery of the unproclaimed PSSA, not through some unenforced “mandate”. All so-called “mandates” are exactly equivalent to the PSSA.

Everyone refers to the PSSA at the bargaining table. Employers, believing that they are bound by it, comply with its sections. In the case of Manitoba Liquor & Lotteries, the evidence shows that the employer was following the PSSA months before they received their official (and equivalent) mandate from the Province.

There are no employers in the public sector who have put forward anything other than the PSSA pattern since it was passed.

Furthermore, in his reasons in the injunction hearing, Justice Emonds said that the Government of Manitoba was already applying the PSSA, even though it wasn’t yet proclaimed.

The PSSA is more than a draft bill. It has been enacted; it has been passed. According to Sullivan on the Construction of Statutes, once a law has been enacted it becomes a body of rules, rules which are recognized as law, and the meaning of the law as of the date it is passed can be used to interpret people’s rights and obligations.

Once passed, a law is, therefore, fixed and complete, a fully articulated intention of the legislature. Thus, an un-proclaimed law can be the subject of an injunction, something Justice Edmonds also held in the injunction hearing in this case in 2018. As per Tlicho Government v. Canada, 2015 NWTSC 9:

The deliberative stage has ended and the law has been enacted …

… therefore, there are no barriers to the court granting injunctive relief.

As the Supreme Court of Canada found in B.C. Health Services, the question is what actual impact the law is having, quite apart from its technical legal status.

There is nothing theoretical or hypothetical about the actual impact the PSSA is already having right now.

For all these reasons, the PSSA is already acting and impacting Manitobans, and it is therefore not premature to rule on it now.

Carson:

The Constitution of Canada is the supreme law of the law and the Charter is a statement of our most fundamental values.

The Province of Manitoba cannot insulate itself from the restrictions of the Charter through legal technicalities, and cannot hide behind its own strategy decision to avoid accountability.

Based on the law before you, and all of the facts, the conclusion must be that the Public Services Sustainability Act violates Section 2(d) of the Charter – Freedom of Association.

LABOUR'S FINAL ARGUMENT

I.   LAW

II.  EVIDENCE

III. EXPERTS

IV. WRAP-UP