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Anyone closely following the political and legal saga of the Pallister government’s controversial wage-freeze bill for public servants has always known, one way or another, it was going to end up at the Manitoba Court of Appeal.
Whether government or the conglomerate of unions fighting Bill 28 won the first go-around at the Court of Queen’s Bench, the question of whether the province can bypass the collective bargaining process and impose such restrictions was always expected to be sorted out at Manitoba’s top court.
Posted: 17/08/2020 5:58 PM
The Province of Manitoba is appealing a recent Court of Queen’s Bench decision that struck down controversial wage-freeze legislation passed by the Progressive Conservative government in 2017.
In her June 11, 2020 decision, Justice Joan McKelvey ruled the legislation—called the Public Services Sustainability Act—violated the constitutional rights of unionized public sector workers by eliminating their right to collective bargaining.
As it happened, the unions won the first round. In her ruling released in June, Queen’s Bench Justice Joan McKelvey called the Progressive Conservative government’s bill "draconian," and ruled it violated the freedom of association rights of public servants under Canada’s Charter of Rights and Freedoms.
The province announced this week it is appealing that decision.
Had it gone the other way — and it could have, if adjudicated by a judge with an alternative interpretation of Sec. 2(d) of the charter — it would be the unions filing the appeal.
That’s why it’s disingenuous for the Manitoba Federation of Labour, which spearheaded the campaign against the Public Sector Sustainability Act, to now accuse the province of unnecessarily prolonging the legal fight.
"It is unfortunate that the Pallister government has chosen to drag this process out further instead of bargaining fair contracts with Manitoba's dedicated public-sector workers," MFL president Kevin Rebeck said in a statement this week.
The issue of whether governments can interfere in the collective bargaining process is not cut and dried. There have been a variety of appellate court rulings in recent years across the country, including at the Supreme Court of Canada.
What the nation's top court has ruled is: governments have a limited ability to impose arbitrary terms on contracts, but only if there is "meaningful consultation" and no "substantial interference" in the collective bargaining process.
McKelvey concluded the Manitoba government led by Premier Brian Pallister didn’t meet that test, ruling the province substantially interfered in the collective bargaining process. Maybe she’s right, but this should be sorted out by a panel of appellate court justices.
Charter issues are not always settled by lower courts. They are often heard on appeal; sometimes they’re upheld, sometimes they’re overturned. That’s how the system works.
"It is unfortunate that the Pallister government has chosen to drag this process out further instead of bargaining fair contracts with Manitoba's dedicated public–sector workers." – MFL president Kevin Rebeck
Constitutional issues are rarely black and white, which is why we often see split decisions by appellate courts. Even judges don’t always agree among themselves on how to interpret the charter. Either way, appealing a ruling such as this is perfectly legitimate — and is the right thing to do.
There’s also the convoluted legal issue of whether the courts can rule on a bill that was never proclaimed into law. Bill 28 was passed and received royal assent in 2017, but was not proclaimed by cabinet.
It was a political and unscrupulous tactic by the Pallister government to force unions to accept the provisions of a bill without making it officially a law (hoping, presumably, to shield it from court action). Government crafted the statute so the wage freeze would apply retroactively if the bill was proclaimed, making the legislation-in-limbo virtually impossible to ignore.
McKelvey ruled the PSSA is no longer a bill because it received royal assent. She concluded it is law "albeit without legal effect," calling it "disingenuous" to suggest contracts were being negotiated freely without the provisions of the bill hanging over negotiators’ heads.
“It is clear from the evidence, both in statements made during negotiations and in the conduct of government, that government has proceeded as if the PSSA had been proclaimed and was in effect.” – Queen’s Bench Justice Joan McKelvey
"Whether it is proclaimed legislation or not, the government and public-sector employers have governed themselves in accordance with its provisions and mandated wage figures," she wrote. "It is clear from the evidence, both in statements made during negotiations and in the conduct of government, that government has proceeded as if the PSSA had been proclaimed and was in effect."
She may be right on that, too, but it would be useful for the appeal court to weigh in on that matter as well.
These are important legal issues that need clarity from Manitoba’s top court. Union leaders would be making the same arguments had they lost Round 1.
Tom has been covering Manitoba politics since the early 1990s and joined the Winnipeg Free Press news team in 2019.
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