If province opens up contracts, case will linger in courts for years: union lawyer


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Breaking existing public sector collective agreements could embroil Manitoba in a bitter court battle lasting into the 2020s.

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Hey there, time traveller!
This article was published 29/11/2016 (2200 days ago), so information in it may no longer be current.

Breaking existing public sector collective agreements could embroil Manitoba in a bitter court battle lasting into the 2020s.

“They would impose it, we would go to court — it could go five or six years,” union labour lawyer Garth Smorang said Tuesday.

“It would start with the Court of Queen’s Bench, move to the court of appeals, and eventually to the Supreme Court of Canada,” regardless which side won at each level, predicted Smorang, whose firm Myers Weinberg counts teachers, professors, firefighters, transit workers, and some provincial employees among its clients, as well as private sector auto workers.

PHIL HOSSACK / WINNIPEG FREE PRESS Premier Brian Pallister: 'I believe this is an all-hands-on-deck situation'

Premier Brian Pallister revealed Monday that he is considering talking to unions about opening up existing agreements to reduce public spending. Previously, he said he was planning to legislate a “pause” in public sector wages in the first year of new collective agreements.

Some of the province’s largest public sector unions — Canadian Union of Public Employees, Manitoba Government and General Employees Union, and the Manitoba Teachers’ Society — declared Tuesday they’re ready to defy Pallister and protect the deals they’ve negotiated in good faith.

Smorang said a precedent was set a decade ago when British Columbia tried to impose money-saving restrictions on health services workers.

“The legislation precluded the union from bargaining a number of issues, and removed a number of existing collective bargaining issues,” such as layoffs, contracting-out, and bumping rights, he said. “The Supreme Court of Canada said that government cannot pass legislation that seriously undermines the union’s right to bargain.”

Smorang said the courts dig deeply into the factors surrounding a government’s legislation breaking existing deals.

“It has to be a substantial interference — that is usually self-evident,” Smorang said. And the government must open its books, he added: “Is it a crisis, or is it a made-up crisis?”

The courts will require the government show its consultation was both extensive and genuine, said Smorang. “If its mind has already been made up, that’s a test” that the courts will apply in their ruling.

Pallister told reporters Monday everyone must play a role in getting Manitoba’s finances under control.

“Something has got to give. I mean you can’t keep rolling out $900 million (government operating) deficits and think you’re doing anything but deferring a tax obligation to your kids and to yourself when you’re older,” the premier told reporters after question period. “That’s exactly what’s gone on, and there’s a reason we got two credit rating downgrades because that was the practice of the previous government.”

The province’s 14,000 civil servants inked a five-year deal with the province in January, retroactive to 2014. Under the deal, the government workers are set to receive a two per cent increase on April 1, 2017.

That increase may now be in doubt.

Teachers just received a two per cent increase, and are due for two 1.5 per cent raises during the 2017-18 school year. There are 38 separate collective agreements between teachers and their school divisions.

“I ran on this. Our government was elected on this. We’re trying to fix the finances of the province. We’re asking for help. We need all hands on deck,” Pallister said.

He said about $10 billion in government expenditures annually go to wages and benefits.

The premier acknowledged he is “taking an approach that’s been seldom taken in the past.” He emphasized he wanted to work co-operatively with union leaders on behalf of their workers.

Manitoba Government and General Employees Union president Michelle Gawronsky said Tuesday morning she’s heard nothing from Pallister since they met Nov. 1.

“The premier’s comments should be of concern to all Manitobans,” said Gawronsky in an email. “He is playing fast and loose with the Charter rights of all working people in Manitoba. And you don’t protect and improve public services by disrespecting and threatening the people who deliver those services.

“Everything I’m hearing about threats to public sector workers and reopening already signed contracts comes from what we are hearing in the media. Reopening contracts or imposing settlements wouldn’t be fair and would likely be ruled unconstitutional.”

Citing Statistics Canada, the MGEU says the cost of living has increased by 19 per cent in Manitoba in the past decade, the same amount provincial employees’ wages have risen, compared to an average wage increase in Manitoba of 32 per cent.

MTS president Norm Gould said in an email statement: “As far as the over 15,000 public school teachers in the province are concerned, we have bargained agreements in place and the Supreme Court of Canada’s position is quite clear.”

Manitoba CUPE president Kelly Moist said Pallister’s plans are ideological and won’t improve Mnaitobans’ lives.

“A deal is a deal,” said Moist. “If the premier wants to open a conversation on wages, our starting point is the collective bargaining process. We fully expect the government to honour its election promise to maintain public services and jobs, and its commitment to respect collective bargaining.

“Opening up collective agreements would be a very aggressive step. CUPE wants to move the conversation back to how we can work together for the public good.”

The University of Winnipeg Faculty Association accepted 7.5 per cent over 54 months this summer, including a 1.5 per cent increase this year, after the bargaining team warned its members to grab the money on the table before Pallister got involved. UWFA president Prof. Jacqueline Romanow has yet to respond to Pallister’s comment.

Smorang said governments have had a tough time making their case in court.

Earlier this year, Ontario lost a bid because it was found to be unconstitutional to impose restrictions on teacher unions if they didn’t do it voluntarily, Smorang said.

Two weeks ago, British Columbia lost after trying to impose on teachers that they would not be allowed to bargain on class size, class composition, or on the number of aides for special needs students.

Smorang said Pallister would have to prove reducing negotiated wages is critical to the province’s finances.

“No one’s going to argue 1.5 per cent in this environment is outrageous,” he said. “I don’t see a 1.5 per cent increase as ridiculous.”

If the province lost the case in court, coming up with retroactive pay six years later could create another fiscal headache, Smorang said.


Larry Kusch

Larry Kusch
Legislature reporter

Larry Kusch didn’t know what he wanted to do with his life until he attended a high school newspaper editor’s workshop in Regina in the summer of 1969 and listened to a university student speak glowingly about the journalism program at Carleton University in Ottawa.


Updated on Tuesday, November 29, 2016 12:21 PM CST: Updates

Updated on Tuesday, November 29, 2016 1:01 PM CST: Fixes headline

Updated on Tuesday, November 29, 2016 1:43 PM CST: Updates

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