The super six speak

There’s a cold wind blowing in Winnipeg today. Kind of like the cold wind that’s blowing through Manitoba’s public sector thanks to the PSSA. But we’re inside now, so let’s hear what the super six union representatives have to say.

Before we get started, I catch Garth Smorang having some fun. He is explaining to some visitors why Canadian lawyers wear robes, and the vestigial money pouch that still hangs from the back.

Yes, lawyers in Canada have to wear robes. I never liked the “batsuits” much. Too hot and a little silly. We used to race  down the hallway with our arms outstretched, making our robes billow out behind us as though we were flying. And the waistcoats are so fitted, which means unless you are one of those people whose weight never changes, you have to get new ones made, again and again. I never knew what those white tie thingies were called, so I called them my “white tabby thingies”. Could be worse. Up until recently, English lawyers also had to wear wigs – white powdered things made of horse hair. Yuck.

The money pouch Garth was explaining is in the picture on the far right. Although this is disputed, legend has it that in the old days, it was unseemly for a barrister to receive money personally. Horrors, but I gather this was because centuries back, barristers were usually aristocratic gentlemen who were above such things as payment for services. Thus, the money pouch hung from the back, allowing barristers to get paid without having to sully their dignity by getting money in hand.

When Smorang sees me watching him, he’s probably wondering why I’m smiling. It’s because I’ve already dubbed him “Gregarious Garth.” He is just ever so outgoing, friendly, considerate, and congenial, always smiling and having a laugh. Lawyers who litigate aren’t always so pleasant, but it can happen. He’s proof of that.

Anyway, it is time for court to begin and we get down today’s business.

The testimony of the super six

Today is an important day, but a confusing one for court watchers. Each of these witnesses has sworn an affidavit which is going to be used as part of the evidence for the trial, and although for some of them there might be some additional facts that the unions want to add, the main reason they are here is so that Leonoff’s team can cross-examine them. Mr. Nice Guy (Michael Bodner) does the first three or four and then Heather Leonoff finishes them off.

This means, however, that there is a whole lotta discussion about details from the affidavits that the lawyers and the judge already have, matters that we who are there to observe know nothing about. However, I can still give you a general idea about why they are here, and highlight some of the interesting specifics that came out.

What all of these witnesses have in common is that they were the chief negotiator on behalf of whatever union happened to be involved in attempted bargaining of collective agreements during the reign of the Public Services Sustainability Act. (This is exactly what Elizabeth Carlyle’s testimony was about, so had she been heard in order, she would have been part of this group, and they would have been the super seven.)

I’m going to deal with their testimony all mostly together, but let’s meet the super six now:

  1. Marc Lafond, for the International Union of Operating Engineers Local 987 (IUOE 987), negotiating an agreement with the Winnipeg Health Authority in 2018.
  2. Jon-Tomas Godin, for the Brandon University Faculty Association (BUFA), negotiating their collective agreement to cover the period from April 1, 2019 to March 31, 2023.
  3. Darlene Tremblay, from the MGEU, negotiating on behalf of trades workers at the St. Amant Centre, Victoria Hospital, and St. Boniface Hospital on collective agreements covering the period April 1, 2016 to March 31, 2019.
  4. Marc Payette, also from MGEU, negotiating on behalf of employees at Red River College and Assiniboine College for collective agreements covering 2017-2021 (there were two separate agreements, but Payette handled both of them, and what happened with each was essentially the same).
  5. Miranda Lawrence, an MGEU negotiator who handled the negotiation of the 2018-2022 Manitoba Liquor and Lotteries Master Agreement, known as “GOLICO” (for historical reasons, nobody seems to know what the acronym stands for, everyone just calls it that).
  6. Phil Kraychuk, from United Food and Commercial Workers Local 832 (UFCW 832), who was negotiating on behalf of a group of UFCW members who work with the Fort LaBosse School Division.

Based on what I heard, and what I can infer from the context, it looks like these people put in affidavits because the union side wanted to show that as a result of the Public Services Sustainability Act, collective bargaining in the Province is becoming exceedingly difficult, and, in some cases, practically impossible.

I gather that taking all monetary issues off the table makes it almost not worth it for the unions to bother bargaining, and nobody seems to know whether the wages are being forced off of the table because of the PSSA or not. Even though the PSSA hasn’t been proclaimed, employers are coming to the table with the PSSA pattern – 0%, 0%, 0.75%, 1%, but no one seems to be willing to admit or say that this is because they are bound by it.

During the IUOE 987 negotiations, Marc Lafond got a letter from his counterpart, Elizabeth Beaupre, saying that the PSSA did not apply to the agreement, and enclosing a legal opinion confirming that fact. But, from what I can tell, Beaupre and the WHRA offered 0%, 0% and nothing else for 2017 and 2018, and stuck to it. So where did they get that? And why? Seems to me as though this is the PSSA in indirect action, whether anyone says so or not.

That was the clearest indication of a connection between the limbo-ing PSSA and ongoing negotiations, but as best as I can tell, no matter what anyone said or didn’t say, in every negotiation that the super six was involved with, they were met with the same position from the employer – some form of wage non-increases based on the PSSA pattern: 0%, 0%, 0.75%, 1%.

To their credit, some of the employers seem to have been as unhappy with the situation as their unions were. In the Memorandum of Understanding surrounding the agreement with BUFA, Brandon University agreed that “both sides acknowledge the detrimental effect of the PSSA on collective bargaining.” Nonetheless, for whatever reason, the employers seemed to feel that they needed to comply with it.

The tenor of the Government’s cross-examinations remained the same as before – a smattering of additional facts followed by a focus on all the wonderful things the unions can still bargain for even when all monetary issues are swept off the table. For example:

Oooh, look, you got an updated definition of a conflict of interest. Oh, well no, it was not so much a new definition but rather a clarification of a definition that nobody understood.

                 (Wow. What an achievement.)

But you got a cornucopia of benefits – on spousal recruitment, on workload, on credit for spending time on the Ethics Committee, and credit for supervising Ph.D. students even if they don’t finish, and look, increases to allocations to the research fund.

(Yeah, whoopee.)

Well, what about better rates for using your personal vehicle for work? That’s good isn’t it?

(Maybe, but we’d rather increase our remote allowances so that we can get people to work up north, but apparently we can’t because that is monetary and is therefore prohibited by the PSSA.)

But you got contact hours reduced for some instructors, that’s a gain isn’t it?

(Yeah, but a gain is not the same thing as a win.)

And the research fund allocations for these professors are going to double over the term of this agreement. Isn’t that great? Research is critical if you want to get tenure, right? That’s a gain or a benefit you were able to obtain?

(Well, it’s a gain, I suppose, but getting promoted means nothing when you ain’t getting paid.)

These sarcastic comments are all mine of course. The Super Six were all dignified and professional and would never have been so rude. But I thought these suggestions of possible gains were a little ridiculous compared to how much the PSSA put the unions at a loss, and from the looks on their faces, I wouldn’t be surprised if each of the Super Six thought so too.

Besides and beyond all this, it turns out there is another huge hit to the unions’ bargaining positions when you take all money off the table. This came up in a couple of these collective agreements, and it will come up again. One of the main things public sector unions will say in collective bargaining is – we’ll take less money if we can get better job security protection. Without money to trade with, the unions have to settle for less (or nothing) on job security too.

unions fight back

It was not all bad news for unions. Although they were limited in what they could get, the unions started making it clear that even if an agreement was reached, they were going to eventually try to get it all undone. BUFA’s deal was the most explicit, including what they called “Section Specific Reopeners” which allow BUFA to immediately reopen all monetary terms (which includes wages), if a court finds that the Public Services Sustainability Act is unconstitutional.

Other unions stipulated that they were only agreeing under duress. A few even put this right into the ratification ballot – we are being forced into this and only voting yes because we have no other choice in the circumstances. This will give them a basis to reopen the collective agreements, and presumably fight for a deal on everything, monetary and not, if the unions’ legal challenge to the Public Services Sustainability Act is successful.

Uh-oh. So much for trying to get the benefit of the PSSA even before it has been proclaimed (apparently by virtue of its retroactivity provisions). You might succeed in the short term, but it looks like you might have to just go back and retroactively clean up this mess.

more wondering

My notes on this day are sprinkled with wonderings. As I’ve mentioned before, are the Government’s lawyers going to say that there is no actual effect of the PSSA while it remains in limbo, or are they going to argue that whatever effect there is, it isn’t the Government’s fault? Or, is there some other characterization that they are going to make, and I just can’t see it, because we haven’t seen any of their witnesses yet?

Nonetheless, for the moment, and with the greatest respect to whoever it is that still sits on the Public Services Compensation Committee, I would say that whatever game you are playing, and there certainly seems to be one, it might have been prudent to knock it all off long before your Constitutional Law Section of the Crown Law Division of Manitoba Justice got stuck trying to duck, bob and weave around the logical legal and factual consequences of the Public Services Sustainability Act, even if, as it stands, it has only been passed but not yet proclaimed.

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.