The testimony of sheila gordon

Sheila Gordon has sworn three affidavits in these proceedings. And the main focus of her testimony today is going to be about the recent negotiations between the MGEU and the Government over their master collective agreement, known as the “GEMA”.

Sheila Gordon is a senior negotiator with the MGEU. She’s spent 28 years in the trenches and has probably been at over 100 collective bargaining tables. She is quietly distinguished, all even and calm. No edgy aggressive edges, like you might find in a lawyer. For someone who spends their time in cooperative collective bargaining, this is a good thing.

Direct Examination – by shannon carson

We get a little background about some of the other MGEU agreements, and Gordon explains that while some of them were ratified, with a conditional (i.e. protest) ballot, that didn’t happen with the GEMA, because, unlike the others, GEMA has a provision that if they can’t reach an agreement, the matter goes to binding arbitration.

As with other unions, the MGEU sets their bargaining priorities by the democratic process of meeting with members, conducting surveys, and holding discussion forums to discuss all the issues. (By this point, it occurred to me – what if our politicians determined our government priorities this way? How different would that be from what they do now – coming up with platforms based on things that they decide we need, and then selling them to us in ways that, for the most part, wouldn’t meet the Canadian Advertising Standards.)

Anyway, prior to the advent of the Public Services Sustainability Act, collective bargaining over GEMA had been relatively uneventful, and generally workable. Typically, the parties meet as much as 30 or more times in any given round, as they collaborate to put together what is inevitably a complex agreement.

According to Gordon, like most negotiations of this type, both parties tend to start with non-monetary issues, as these are less charged, and working on them allows the negotiators to build trust as well as momentum. The problem with monetary issues is that once they arise, almost everything else tends to get ignored. As a result, in the normal course, both the union and the government usually don’t put specific proposals on wages until late in the process.

GEMA negotiations have been generally successful in reaching agreement. From 2006-2015, the parties started binding arbitration only three times, and even then, agreement was reached before any arbitration occurred. But that was all before the Public Services Sustainability Act, and the GEMA renewal that was due in 2019.

Are we PSSA’ing or Not?

Uh boy. Here we go. In the 2019 round, Sheila Gordon was the chief negotiator for MGEU, and her counterpart for the Government was Brian Ellis, the Assistant Deputy Minister for the Labour Relations Department (who took over when Rick Stevenson retired). (I find out later that Brian Ellis is one of the people I have been seeing pop in and out of the trial.)

They are talking about documents again, documents which show what communications were going back and forth about GEMA, and documents I don’t have and have never seen. But from what I can tell, this was another episode of the union saying – hey are we bargaining according to the PSSA or not, and the employer saying, well …, not very much. It’s a little maddening here since in this PSSA instance, the employer is the Government of Manitoba itself, you know, the people who passed this PSSA‘ing thing. And not only that, as far as I know, Brian Ellis would have sat on the Public Sector Compensation Committee. Rick Stevenson did. You’d think they’d know. 

Anyway, when the parties meet on April 10 and 11, 2019 to exchange proposals, the question of what is going to happen due to the Public Services Sustainability Act is a big one for the MGEU side. There doesn’t seem to have been much of an answer, other than Ellis mentioning that if the MGEU goes to binding arbitration, any gains they might make in the meantime will all be off the table. (In the circumstances, it is kind of a veiled threat – you’d better stay and bargain, because if you take us to arbitration, it’s hard-ball time.)

When Sheila Gordon mentions that these are extraordinary times. Ellis replies something about it being business as usual. Except of course it is not business as usual if the PSSA is going to be a part of this round. So, Gordon asks for clarity – does the PSSA govern this agreement or not? I gather she doesn’t get a straight answer.

But this question is critical to the MGEU. The PSSA will turn the process on its head. With wages already a pre-determined outcome, all the monetary issues are not only being moved to the front, they are already pre-determined. Gordon says “We needed to know what world we are in.”

There’s some correspondence that goes back and forth at the end of April and the beginning of May. It goes something like this:

Gordon:   Is the PSSA applicable?

   Ellis:       Well, in past practice, we don’t talk about that yet; not to say that we won’t tell you, but we still have some “substantial bargaining” to do first. (Uh, what?)

Gordon:   Listen, we need to know, one way or the other, we think we know the answer, but out of respect for the process, we are asking you to tell us for sure.

    Ellis:      We are troubled by the focus on monetary mandates. This is the wrong order to deal with things. of order, we’ll tell you later.

Yeah, this is rapidly going sour. But, on May 27, Gordon tries again:

Gordon: We need to know whether there is any scenario where the government would consider wages increases greater than those provided in the PSSA. If the answer is no, then there is no point in bargaining.

  Ellis:      A number of agreements have been settled already, notwithstanding the PSSA.

That’s not an answer, and they get no answer, so the MGEU decides to trigger binding arbitration.

Fielding Drags Feet

So, this is where the recent news about the Minister of Finance not appointing an arbitrator starts to fit in. Minister Fielding is required by the statute to appoint an arbitrator, but, he declines, saying that he has discretion and it is premature because the parties haven’t done any bargaining yet.

We-e-ll, I’m a little dubious about that. That’s not generally how these things work. But Minister Fielding is staying that course, so the MGEU will be asking a court to order him to appoint the arbitrator some time soon. (Yeah, this all gets done, dusted, and dumped on in the Mandamus Application and the Decision on the Mandamus Application. A study in specious legal nonsense. I suspected it would be silly, but I was surprised by just how bad it was. Anyway … back to Gordon’s story.)

There’s a few more details relating to this and that, but we’ve hit the main points, and so Gordon’s direct ends. The Government side – lawyers and Labour Relations Department people – go into a huddle as they prepare to cross-examine Sheila Gordon.


Well, this is nothing much new. After a few preliminaries, Leonoff starts off with another “you stubborn unions” approach.

Leonoff: You wanted a guarantee that you would be able to get more than 0%,0%, 0.75%, 1,% didn’t you?  (Man, I hate that pattern.)

  Gordon:  No. We wanted to know whether we were going to be bound by it.

Next, we have another round of pointing out the many, many things that MGEU could still achieve even without the possibility of wages appearing anywhere on the table. (I think this is what Brian Ellis meant by “substantially bargaining”. It’s a logical inversion of the Supreme Court’s “substantial interference” test – it’s not substantial interference if there can still be substantial bargaining. It’s an awkward argument, and it’s probably wrong.)

Anyway, Heather then focuses on the potential for creative sustainability savings under Section 14.

Leonoff:   If Manitoba wants to discuss getting preferred providers for the MGEU drug plan, that’s something new that could be discussed, right? It might be attractive? And MGEU could share in the savings?


Leonoff:   And if the Government wants to change the recruitment process for civil service positions, so that they won’t have to advertise, isn’t that something that could be discussed? And the union could help set up systems which would help save money there, wouldn’t that be good?

I’d been writing intently throughout Sheila Gordon’s testimony, with my head down and focused firmly on the page. But at this, I suddenly stop and pause with my pen poised in mid-air. Did I just hear her say that there could be sustainability savings from not putting up advertisements on a website? No way.

I put down my pen, shift back in my chair, and start looking around the room – am I the only one who thinks that this is totally absurd? I mean really, how much are they going to save, what, like 50 cents? That’s not going to be much help in making up for lost wages for 39,000 MGEU members, even if the Treasury Board decides, in their absolute discretion, to give them some of it. What are they going to do? Throw a quarter on the floor of the MGEU Cafeteria, and say, there you go union, share.

Now I’m shaking with silent giggles because I can’t stop laughing, but I still want to see if anyone else is amused. I catch Sheila Gordon’s eye. Oh good, she is smiling too. But as Sheila struggles a little to keep a straight face, I realize that she is probably not laughing at the questions, but rather most likely trying not to laugh at me laughing, because thanks to where Leonoff had been wandering while talking, Sheila is looking straight at me.

I’m sorry Sheila!

I miss most of the rest of what happens, but it seems to have been little minor details anyway, including another reminder that even with the wage freezes, employees will still get their step increases.

redirect – by shannon carson

This was one of the most effective uses of re-direct I’ve seen yet. During cross-examination, Leonoff had suggested that because MGEU decided not to negotiate on anything, they had abandoned other priorities.

Not so, Carson has Gordon say. All of these priorities will be pursued on the binding arbitration and so nothing is being abandoned. They are just dealing with them in a different way, at a different time and place, in binding arbitration which, under GEMA, the MGEU is supposed to be entitled to. Well done, Shannon!

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.