New column day

Here, on how the Wall government's spin on an essential services appeal seems to be largely ignoring some of the most important conclusions reached by Justice Ball in his decision.

For those interested in seeing exactly what Justice Ball concluded about Wall's overreach, see generally paragraphs 174-222 of the decision. But I'll particularly highlight the following:

[205] No further comparative analysis is required. It is enough to say that no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly, as the PSES Act. No other essential services legislation is as devoid of access to independent, effective dispute resolution processes to address employer designations of essential service workers and, where those designations have the effect of prohibiting meaningful strike action, an independent, efficient, overall dispute mechanism. While the purpose of all other essential services legislation is the same as the PSES Act, none have such significantly deleterious effects on protected rights under s. 2(d) of the Charter.

...

[217] In summary, I find that the PSES Act transfers all of the power previously held by the unions to the public employers, who are backed by the considerable additional powers of the Legislature. Considered in its entirety, its provisions do not satisfy the minimal impairment requirement of s. 1 of the Charter.

[218] In my view, the PSES Act would be substantially less impairing of the right to strike protected by s. 2(d) of the Charter if in every case it made provision for an effective, independent dispute resolution process to address the propriety of public employer designations of employees required to work during a work stoppage. In addition, the PSES Act would be substantially less impairing if it provided compensatory access to adequate, impartial and effective overall dispute resolution proceedings in those cases where employer designations effectively abrogate the right of employees to engage in meaningful strike action. The latter process may not be an issue for many of the public employers within the scope of the PSES Act, but it is a fundamental issue for many others, most notably police officers and health care workers. Every work place is different, and every work place must be dealt with according to its own set of circumstances.

...

[220] As an overall assessment, I have accepted that the previous labour relations structure in Saskatchewan gave public sector Unions unrestricted power to unilaterally decide what essential services, if any, would be provided during a strike. I have accepted that the Government’s objective in enacting the PSES Act was to ensure the continuation of essential services to the community during a strike — an objective that is pressing and substantial. However, in the preceding two stages of the proportionality analysis I have explained why, in my view, the deleterious effects of the PSES Act substantially outweigh the public benefits it confers. Quite simply, I do not accept that the manner in which the PSES Act transfers all of the Union’s former powers to the employers is minimally impairing of protected s. 2(d) rights.

[221] A number of options are available to reduce these concerns. Some are:

• in every case, provide an impartial and effective dispute resolution process by which a union may challenge public employer designations under s. 9(2) of the PSES Act;

• in cases where public employer designations under the PSES Act remove a meaningful right to strike by the employees, provide an adequate, impartial and effective dispute resolution process;

• enable public service unions to have meaningful input into determining which employees will work during a strike;

• require public employers to consider the availability of other qualified persons to provide essential services during a strike.

[222] In summary, I conclude that the provisions of the PSES Act go well beyond what is reasonably necessary to achieve the Legislature’s stated objective.

For more about the case, here's my earlier column post.