The testimony of michelle gawronsky

Michelle Gawronsky is the President of the Manitoba Government and General Employees Union (MGEU), a position she has held since 2012. It takes me awhile to figure out what her testimony is about because I am so distracted by how forthright she is. Every time she says something, I keep thinking – “leader, leader, oh yeah, that’s what a great leader would do or say.” It’s so automatic – what is the problem, what can we do to solve it, let’s roll up our sleeves and get right to it.

And she lives it:

There was a sheriff who sat at a table at the entrance to the skywalk that you have to take to get into the courthouse. He was there most days during the trial, and for most of the day. I had seen Michelle Gawronsky talking to him before, but one day, as I was walking by, I heard this:

Sheriff: That’s not all, I have lots of other ideas too.

Michelle: Go ahead and email me. I’d be happy to hear from you.

I kept going, but when I looked back, there she was, still at his table, listening earnestly.

Direct Examination – by shannon carson

As always we get to hear some of Gawronsky’s background, how long she has been part of the MGEU and how she rose up the ranks.

As the biggest group of public employees the Government of Manitoba deals with, some 32,000, and by far the biggest union affected by the Public Services Sustainability Act, Michelle Gawronsky and the MGEU have been both intensely interested in, and negatively impacted by, its provisions.

Just after the election in April of 2016, Gawronsky had asked to meet with the Premier to launch MGEU’s relationship with the new government. For one reason or another, they did not end up meeting until November 1, 2016. During that meeting the Premier mentioned that they had “inherited a mess” and might want feedback from the MGEU. Gawronsky replied that she would be happy to meet with him at any time to discuss what the concerns are and how to solve the problems. Gawronsky specifically mentioned financial concerns, but the Premier did not respond.

At some point (I think it was in late 2017, but I am not sure). Rick Stevenson called Gawronsky to talk about the possibility of mandatory reduced work weeks (currently there is a system where MGEU employees can voluntarily agree to work fewer days).

“Is this about Bill 28 (the PSSA)?” Gawronsky asked. Stevenson didn’t answer and instead said something about work/life balance and salaries.

“Well, it isn’t time yet,” she said. “We have the GEMA (the general management agreement for MGEU members) coming up, and we still don’t know what is going to happen with Bill 28 and this passed but not proclaimed situation.”

I gather that that was the end of that discussion.

Shannon Carson then shifted to the MGEU submissions to the committee responsible for reviewing Bill 28, which Gawronsky herself made. It reiterates the union’s general approach:

The MGEU is open to negotiation in a collaborative spirit and urges the government to reconsider Bill 28. Let’s move forward with free bargaining and get a fair deal at the table. The MGEU has always had a strong drive to cooperate to help solve problems. For example, the wage freezes it agreed to in 2010-2011 due to the 2008 financial crisis.

Gawronsky’s submissions ended with noting that Bill 28 is disrespectful to the unions and shows disdain for collective bargaining. Carson has her explain:

It’s disrespectful because we are willing to take 0% wage increases in collective bargaining when they are needed. They do not need to be imposed by Bill 28 in this heavy-handed way(Yeah, good point.)

When Carson then quotes the Minister of Finance saying something about costs in the Legislature, Gawronsky comments that:

The MGEU is aware of the problems, and willing to sit down with the government to find common solutions. That offer still stands and we have yet to be taken up on it.

We then find out some additional details on the effects the Public Services Sustainability Act has had on a few collective agreements related to the MGEU. This is mostly to illustrate the frustration the MGEU is experiencing, as the full details are covered elsewhere.

Gawronsky tells us that, for example, in the GEMA (the big one for MGEU members), it is just as much in the union’s interest as it is in the Government’s, to ensure that the quality and cost-effectiveness of public services be maintained. But, she points out, MGEU employees are a fundamental component of that quality. It is in all parties’ bests interests to achieve these goals of “sustainable” delivery of public services.

And moreover, MGEU employees are all experts in their fields where they work, and have lots of ideas. She gets suggestions from members all the time, such as from correctional and probation officers about improving the system, and ideas from the highways department about preventive measures instead of spending more money to fix our roads when they fall apart.

I miss what she said next because I leave to run to the washroom and there aren’t any that close to Courtroom #210 that I know of, so it takes me some time. But what I think happened while I was gone was that they reviewed a little of the Westlab situation and contrasted it with what happened with Doctors Manitoba. Whatever they discussed, this is a good time to fill you in on those bits.

DSM (Westman labs collective bargaining)

Westman Labs is a division of DSM (Diagnostic Services of Manitoba). Two other collective agreements between MGEU and DSM had already been settled on the basis of an aggregate wage increase of 7% over four years. It was assumed that the Westman Labs agreement would be renewed on the same terms as these other two, since all three were always the same, because everyone involved is doing the same work.

However, the PSSA put a spanner into those works. No one was really sure whether it applied, should it apply, and it seems that even the Government wasn’t sure what to do, because if the PSSA applied, Westman Labs would be unfairly 5.25% behind other DSM employees in terms of wages increases.

In the end, it appears that there was some relief and that although the PSSA pattern was applied to the Westman Labs agreement, the Public Services Compensation Committee (the cabinet committee doing all this PSSA stuff) approved a retroactive wage adjustment. So, the Government did finally bring them up to par. It only took two years.

In the Agreed Statement of Facts, the Government acknowledged that the “unintended consequences” at Westman Lab include:

  1. Unhappiness amongst the employees in the bargaining unit;
  2. Recruitment and retention problems (loss of staff who would get paid significantly more to do the same job at another laboratory); and,
  3. The general unfairness of a unit that had traditional pattern bargained (with wages being the same as in the other two related agreements) now having a different agreement.

Hmmm. Well, those are certainly negative consequences, but I’m not really sure how the Government can say they weren’t intended. They knew this would happen, and they did it anyway.

There’s a significant contrast between how Westman Labs, and other public sector unions were treated under the PSSA and what happened with Doctors Manitoba.

Doctors Manitoba is an association that represents physicians, medical students, and residents. (They are not part of MGEU or any other public sector union. They stand on their own.) When the master agreement between the Province and Doctors Manitoba was renewed in July of 2019, the fees payable for various services did in fact follow the PSSA pattern of 0%,0%,0.75%,1% increases over four years.

However, in other areas, such as maternity leave, medical education, northern retention, etc., certain funds received an “Additional Investment” which in the aggregate amounted to another $4.5 million every year. These kinds of monetary increases are also prohibited under the Public Services Sustainability Act, and in every other instance where the PSSA was being applied, such additional benefits were never even on the table.

What’s more, although the Government tried to justify these Additional Investments as “sustainability savings” permitted under the PSSA, the sustainability savings sections don’t apply to Doctors Manitoba because doctors are paid via fees, and are not employees. And worse, although they point to some areas where these savings might be realized, no one ever did any costing or calculations to prove that these so-called sustainability savings actually saved anything, much less $4.5 million a year.

I take that to the unions, the result is that Doctors Manitoba got a special deal from the Province that they weren’t entitled to and without even trying. That’s certainly seems to be the case, based on this information.

And that is how Michelle Gawronsky’s direct examination ends. As it is the end of the day, we have to wait until tomorrow for her cross-examination.

CROSS-EXAMINATION – BY HEATHER LEONOFF

When we reconvene the next morning, yay, hooray, we are in a new courtroom, Courtroom #128. It looks a lot like this one – with the old-style wood panelling. But the Bench (where the judge sits), the counsel tables, as well as the gallery are all somewhat smaller, since this is a picture of the Manitoba Court of Appeal courtroom, where the serious business happens.

Courtroom #128 definitely cozier, but it is still very cold. Anyway, I take the roughly equivalent seat where you would sit in “reporter’s row” and settle in.

As is common in cross-examination, Heather flips from point to point. She is trying to add pieces of evidence that she is going to fit in to various places of her argument. So, this first bit covers a bunch of things that seem to be unconnected, because they are merely an attempt to pin-point possibly helpful facts.

Leonoff:  You spend 12 months a year lobbying on behalf of the MGEU?

Point:     “Lobbying” has some negative connotations.

Leonoff:  Safety for your members is important, and the Province is introducing legislation to help?

Point:       The Government is concerned about MGEU employees too.

Leonoff: The MGEU never made any proposals to the Fiscal Working Group, did they?

Point:       You weren’t helping the FWG were you? (Ok, but the testimony is that the Government didn’t give the FWG enough information for there to be any opportunity for them to be helpful, so not much of a point.)

Leonoff: MGEU has been part of the restructuring of the Health Units, right?

Point:       I think the Government keeps mentioning the Health Restructuring because they want to show that hey – look at the other things we are doing too to save money; it’s not just on wages.

Leonoff: And GEMA has all these salary grids too, right?

Point:       The salary step argument, which I still don’t understand at this juncture, but I’ll give you a preview – if you still have salary steps, then people’s wages still go up. I’ll tell you what I think of that when Mr. Note-Taker, Michael Conner, explains it with the very last witness – Dr. Beaulieu.

Leonoff then moves into a now familiar refrain – let’s go through all the “important” issues that everyone could still bargain over even though the PSSA took everything related to wages or any other monetary benefit off the table.

These “important” issues include things like long-term disability, the policy on sexual harassments, working from home, and sheriff’s overtime. And as Leonoff goes through them, one-by-one, she keeps repeating things like;

  • Well, these are important issues to your members, aren’t they?
  • You could always add solutions that would make the situation better, couldn’t you?
  • There were opportunities for you to discuss language for the agreements and policies that would help with these issues, weren’t there?
  • There was nothing to stop you from having a full and frank discussion on these matters, was there?

I’m probably making faces here as I write because I keep thinking – well, sure they could talk about these things, but with wages and all monetary wages off the table, the overall discussion is certainly different, and much more limited and unappealing than if the monetary issues had still been there.

In any event, Heather moves on to the DSM and Westlab issues. She seems to be trying to establish that Brian Ellis, the new Deputy Minister for the Labour Relations Division (he took over after Rick Stevenson retired), didn’t actually say that the Public Services Sustainability Act applied, and but did admit that there was a problem with the Westman Labs issue, although he said that there was “no right way to respond to this problem.”

Yeah, I don’t get what the Government is trying to say here. We passed the PSSA but didn’t proclaim it so it doesn’t apply, but when it is applied, it’s not our fault, or we didn’t mean it, or something. I don’t think we’ll find out until we get to final arguments.

Leonoff ends by putting four blurbs from the MGEU news section on their website. I haven’t seen them, but I suspect they are attempts by the MGEU to put a positive spin on whatever PSSA situation they happen to end up in.

That’s it for Gawronsky. A nice short day. We will be hearing from more union people tomorrow, six of them they say.

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.