Sweeping changes to Saskatchewan’s labour relations and employment standards legislation are on the verge of being passed. Bill 85, the Saskatchewan Employment Act, will dramatically transform the laws governing trade unions and industrial relations in the province. The Saskatchewan Party government, led by Premier Brad Wall, insists that the changes will simply modernize and simplify a dozen pieces of existing legislation into a single, omnibus employment act. But workers and trade unions are justified in thinking otherwise. In 1998, Saskatchewan’s current Minister of the Economy, Bill Boyd, unsuccessfully attempted to pass Bill 218, “An Act respecting the Right to Work (RTW) in the Province of Saskatchewan,” while the Saskatchewan Party was in opposition.1 In fact, debates over right-to-work style reforms and union financial transparency have already been contested in Saskatchewan as Bill 85 developed. But why is Saskatchewan, a prairie province with just over a million residents, so important in the national context?
As the birthplace of public healthcare and the country’s first Bill of Rights, Saskatchewan has produced some of the most progressive legislation in Canada. With the passage of the Trade Union Act in 1944, the province became the first jurisdiction to grant public sector employees the right to unionize. Modeled on the National Labor Relations Act (Wagner Act) in the United States, the Trade Union Act represented a pioneering change in Saskatchewan’s economic and labour relations landscape. In the words of Bob Sass, a leading architect of Saskatchewan’s modern health and safety legislation, the Act was seen as a “beacon” for labour unions elsewhere in Canada.2 Indeed, Saskatchewan has served as a beachhead for groundbreaking developments in industrial relations legislation and practice. For this reason trade unions and workers outside the province should pay attention to developments currently unfolding in Saskatchewan.
Labour Law Battleground
Of course, the TUA has always been a contested terrain in the province’s political arena. Above all else the Act enshrines fundamental labour rights and entitlements that need to be protected, reformed, or reversed, as the respective political ideology dictates. In the 1960s, after two decades of CCF-NDP governance, the Liberal government under Premier Ross Thatcher made significant amendments to the TUA and even revoked the right of public sector workers to strike. Many of these changes were reversed by the NDP under the leadership of Alan Blakeney throughout the 1970s. However, an anti-labour campaign was waged again with the election of Grant Devine and the Progressive Conservatives in 1982. Under Devine, Saskatchewan launched an assault on trade unions and many of the privileges secured by the TUA. In fact, the province served as an early beachhead for neo-conservatism as progressive labour legislation was ripped apart.
Current reforms being introduced by the Saskatchewan Party are reminiscent of the Devine period. During the closing days of the legislative session in 1983, the Tories introduced Bill 104, which contained eighteen amendments to the TUA. The labour movement rallied against the proposed changes, whereas the business community and Minister of Labour at the time claimed that the reforms were “moderate” and long “overdue.” Not unlike the language of right-to-work proponents in Canada today, the Bill was said to restore the “rights of the minority… trampled by the previous law.”3
One of Bill 104’s amendments provided for the exclusion of employees from a bargaining unit if she or he “is an integral part of the employer’s management.” In other words, the reforms suggested broadening the definition of manager and pushing a greater number of employees out-of-scope. Today, Bill 85 contains parallel proposals. Interestingly, the North Saskatoon Business Association (NSBA) has recently demanded similar changes, and even made reference in a report to the Devine era as a model.4
Bill 104 also provided for the expansion of management rights, not unlike the 2008 amendments from Bill 6 that gave employers the right to communicate with employees during a union campaign, short of intimidation and coercion. These were all part of the Devine government’s “open for business” strategy of economic revitalization. It’s worth noting that Devine’s economic policies were a resounding disaster.
Today, Saskatchewan is undergoing a “Devine Redux” of sorts. The Saskatchewan Employment Act (SEA) channels over 900 pages of legislation into one, 184 page document. Supposedly the SEA was crafted in a four-month period between July and December of 2012, but rumours suggest that the legislation was drafted well before the government commenced its consultation process on May 1, 2012. Premier Brad Wall insists that the legislation will pass before summer, despite protest from trade unions and members of the public. Unlike the Devine Tories, the current government has been careful to constrain its anti-union animus despite the overlapping objectives. But make no mistake, the Saskatchewan Party has singled out organized labour more than any other group in the province, and labour reforms introduced since 2007 will certainly be remembered as the defining characteristic of Wall’s government.
Only months after winning the 2007 provincial election, the Saskatchewan Party introduced a series of changes to labour legislation, the most important of which was Bill 5 (Public Service Essential Services Act) and Bill 6 (Trade Union Amendment Act). Bill 5 provided public sector employers the power to deem certain services as essential, with no recourse for appeal by unions or employees. Workers who fall into these categories are prohibited from withholding their labour in the event of a strike. Bill 6, meanwhile, ended the card check certification process and granted employers the right to communicate facts and opinions to workers during union campaigns. The Saskatchewan Federation of Labour (SFL) quickly launched an appeal and in February of 2012, Court of Queen’s Bench Justice Denis Ball overturned Bill 5, but dismissed the SFL’s appeal against Bill 6. With regards to the PSESA, Ball’s conclusion was critical: that workers have a constitutional right to strike in order to bargain collectively. The government appealed Ball’s ruling less than a month later.
Near the end of the spring legislative session in 2010, the government passed into law Bill 80, “An Act to amend the Construction Industry Labour Relations Act,” which ended the mandatory craft-based union representation model that had been in place since 1992. Bill 80 allowed any trade union to organize a company on a multi-trade and “all employee” basis. Construction industry groups and employers supported the legislation, while labour organizations feared that Bill 80 was simply a means of allowing allegedly pro-business unions, like the Christian Labour Association of Canada (CLAC), access to the building trades. It’s worth mentioning that there has not been a strike in the construction industry for almost twenty years, and that employers continue to benefit from a booming real estate market in the province.5 For unions, this was another parallel with the Grant Devine government, which had crippled the building trades three decades earlier through legislative “reforms.”
During the 2011 election campaign, Premier Brad Wall remarked on his Twitter feed that he was “Open to unions collecting their own dues.”6 Eventually the Premier backtracked and suggested instead that certain groups, like young people, ought to be given a break from union dues. No other references to labour law reforms were made during the campaign. By May of 2012, Minister of Labour and Workplace Safety, Don Morgan, commenced a public consultation process that aimed at modernizing the province’s employment standards and labour relations legislation. Not a single public forum or hearing was convened as part of the process.
Brad Wall’s “open for business” attitude is gazed upon with envious eyes across the country. After all, Saskatchewan’s economy has continued to grow despite the global economic slump. Some estimates even suggest that the prairie province will lead the country in wage growth throughout 2013.7 As the debate over Bill 85 draws to a close, it’s important for trade unions and workers to examine the extent to which Saskatchewan might serve as an example for standards of reform in jurisdictions where trade unions have a similar political and historical significance. For Tim Hudak, the leader of Ontario’s Progressive Conservatives, Saskatchewan represents a beacon for economic and regulatory changes.
Tearing Down Regulatory Barriers
In 2011, the Ontario Tories released their white paper on labour law reform, “Paths to Prosperity: Flexible Labour Markets.” Ontario Tory leader Tim Hudak has used the paper as a foundation for his campaign to introduce right-to-work legislation, amongst other changes. Modernizing labour laws and workplace regulations, Hudak insists, will provide a cure for the economic malaise facing Ontario, particularly the province’s ailing manufacturing sector. As the report reads: “British Columbia, Alberta and Saskatchewan have agreed to tear down rigid labour and regulatory barriers in a bid to create the most open and competitive economies in the country. So far, they are succeeding.” Hudak exaggerates the extent of reforms being proposed in Saskatchewan, of course, but the intent is clear.
According to the Tory white paper, Saskatchewan’s competitive advantage has developed because of the government’s confrontation with organized labour and trade union legislation. What the paper neglects to acknowledge is that the provinces with the highest union density rates – namely Newfoundland and Saskatchewan – have been leading in economic growth and wages; the exception, of course, is Alberta, where the province is suffering from a crippling multi-billion dollar deficit. Ontario’s Tory leader is also silent on Saskatchewan’s reliance on oil and potash royalties, as well as dividends extracted from the province’s successful Crown corporations initially created by CCF and NDP governments.
“… the Minister remarked that challenging the Rand Formula convention would likely end up at the Supreme Court – a battle he feared the government might lose.”
It’s worth noting that the Saskatchewan Party backed away from challenging the dues check-off issue, despite appeals from organizations like the Canadian Federation of Independent Business (CFIB). Even before Bill 85 was considered for debate, Don Morgan made it clear that the government was not going to embark on right-to-work style legislation. His rationale for the decision was made clear in March, 2013, when the Minister remarked that challenging the Rand Formula convention would likely end up at the Supreme Court – a battle he feared the government might lose.8 It is also the case that public opinion, trade unions, and even a majority of businesses and business lobby groups are opposed to challenging the dues check-off question. Indeed, Saskatchewan has already served as a litmus test for right-to-work in the public sphere.
Whether or not conservative politicians like Tim Hudak will continue to draw inspiration from Saskatchewan on how to transform labour legislation remains to be seen. But the province has shown that public support for extreme anti-union measures, like right-to-work, is not as secure as business groups and their political allies anticipated. How the SEA will affect trade union influence and collective bargaining is also uncertain. And, unlike Hudak, Wall’s political strategy includes making progressive changes like indexing minimum wage to inflation and introducing stiffer penalties for health and safety violations. Nevertheless, the outcome of a comprehensive piece of employment standards legislation will be a useful test for both labour organizations and businesses elsewhere in Canada, particularly Ontario. Whether or not the SEA serves as a beacon for business, or as a model of balance and compromise, is yet to be determined.
Another historical moment in Saskatchewan arrived on April 26, 2013, when the Court of Appeal ultimately overturned Justice Ball’s 2012 ruling. The court decided that the PSESA is constitutionally valid, and upheld the government’s strict regulations on the right of public sector workers to strike. As the decision reads, “In 1987, the Supreme Court rule that freedom of association does not comprehend the right to strike. Its decisions on this point have never been overturned.”9 The Saskatchewan Federation of Labour now has sixty days to apply for an appeal with the Supreme Court of Canada. Too much is at stake for the SFL to pass this over. Depending on how the next phase of this struggle progresses, Saskatchewan might serve as a beachhead for critical developments in labour legislation and the rights of workers to strike.
Finally, what lessons can be learned from the labour movement’s response to the labour law reform? For the most part, resistance to Bills 5 and 6 has been predominately waged in the courtroom. The SFL, and its constituent union members, also launched a media and public relations campaign against Bill 85, as well as the handful of reforms introduced since 2007. The NDP’s strategy included province-wide town halls aimed at gathering public input on the government’s consultation paper and reforms. Business groups also held their own public forums, and it’s likely that their cold reception to the most drastic proposed changes, like ending dues check-off, had a significant taming effect on Bill 85. However, on-the-ground militancy and rank-and-file mobilization has been minimal. This is partly attributable to Brad Wall’s immense popularity in the province, even amongst union members, and his gradualist strategy of chiseling away at trade union influence. What the Saskatchewan example offers is a case of resurrecting older, Devine-era reforms, in a modern and well-polished package. Such is the lesson that this province provides for business groups and organized labour throughout Canada. •