The Manitoba Federation of Labour and a group of more than a dozen labour unions, who together represent over 110,000 government employees, recently launched a court challenge against the Manitoba provincial government in response to legislation that threatens to freeze the wages of public sector employees. The legislation is labeled as The Public Services Sustainability Act, or Bill 28, and it proposes that public sector wages be absolutely frozen for two years with limited increases allowed in the third and fourth year, at 0.75% and 1% respectively; it also restricts the increase of any other monetary benefits such as premiums or bonuses. The collective unions are hoping that the Manitoba Court of Queen’s Bench will issue an injunction on the bill and declare that the legislation is unconstitutional. Kevin Rebeck, the president of the Manitoba Federation of Labour stated that “The Charter of Rights and Freedoms ensures that free and fair collective bargaining can take place through the right of association … and we believe this Public Services Sustainability Act infringes on that right.”
Of course, Section 2(d) of the Canadian Charter of Rights and Freedoms states that “everyone has the fundamental freedom of association.” There is also precedent for the courts striking down legislation which imposes too harshly upon the freedom of association. In particular, in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, the Supreme Court found that Section 2(d) “protects the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental work place issues” and guarantees “a process of good faith bargaining and consultation.” Essentially, the Court stated that governments had a duty to properly consult unions before enacting legislation. As such, the collective unions continue to insist that the Bill 28 legislative committee hearing they attended on May 8th, 2017, was not proper or good faith consultation and that they had hoped that the government would be willing to negotiate with unions as per consultation strategies used in the past. It is thus possible that Bill 28 could be found to be unconstitutional based on this fact.
The Manitoba government is defending its legislation by stating that it has no legal duty to consult unions about the passage of legislation and that the passing of Bill 28 is warranted so that the government can achieve its goal of lowering the provincial deficit. This indicates that the government is likely to rely on Section 1 of the Charter, which “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The government claims it has adopted several strategies that prevent the bill from overly infringing on collective bargaining rights: the legislation does not alter existing agreements, it permits bargaining to continue on all non-financial issues such as health and safety, it allows for wage increases “if real savings can be realized,” it protects the right to strike, it is limited to a maximum of four years, and it allows the subjective exemption of persons or groups from the legislation. Importantly, what this means is that although existing employment agreements would be upheld, agreements between the province and unions that lapse would need to be renegotiated and would then be subject to the terms of the new legislation. There is also precedent supporting the government’s position found in Fraser v Ontario (Attorney General). In this case, the Supreme Court found that no specific “particular process or result” is protected by the freedom of association, and that it only protects workers right “to make collective representations and to have their collective representations considered in good faith.”
It is very likely then that much of this case will depend on whether the Bill 28 legislative committee hearing can be considered as “good faith bargaining and consultation.” Given the legal gravity of decisions on the freedom of association and the resources available to both the Manitoba government and the collective unions, the question of whether this legislation is constitutional could eventually be heard by the Manitoba Court of Appeal and possibly the Supreme Court of Canada. Indeed, the legal meaning of “freedom of association” is at stake and could end up being further defined by the results of this case.
This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.