By Jason Edwards
Nova Scotia’s Liberal government has, since its election in 2013, consistently pursued its vision. Unfortunately for Nova Scotians, that vision consists of an overwhelming transfer of wealth from working people to wealthy individuals and corporations. In order to make this plunder possible, the Liberals have levied a considerable attack on the bargaining power of all Nova Scotian workers under the guise of fiscal responsibility. Bill 100 is just their latest attempt.
Fortunately, the Liberal assault on wages and working conditions has recently begun to stumble, coming up against the guarantees in the Canadian Charter of Rights and Freedoms. Section 2(d), of the Charter is the freedom of association. This guarantees workers in Canada the freedom (1) to form an independent employee association (union) of their choice, (2) to bargain collectively with their employer, and (3) to remove their labour when bargaining has come to an impasse. Section 1 of the Charter states that government can violate these rights “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Liberal government’s first apparent violation of the Charter was Bill 1, the Health Authorities Act. That legislation effectively assigned particular unions to certain groups of healthcare workers. Before the legislation had been enacted in full, the Supreme Court released its Mounted Police Association of Ontario v Canada decision which clarified what restrictions on the formation of employee associations would be considered unconstitutional.
The Liberal government ultimately backed down on parts of Bill 1 and accepted the unions’ cooperative bargaining model, undoubtedly in part because the legislation might not withstand a constitutional challenge. As government-employer, the Charter prevented the Liberals from unilaterally choosing what union healthcare workers were/were not allowed joining.
Now, Nova Scotia’s Liberal government is trying to exert downward pressure on wages and working conditions in the post-secondary education sector with the introduction of Bill 100, the Universities Accountability and Sustainability Act. Bill 100 restricts university employees’ ability to lawfully withdraw their labour. The legislation allows universities in the province to enter five-year “revitalization” periods, where the rights of their unionized employees are made null. During those periods, workers would not be permitted to withdraw their labour through strikes.
When it was introduced, the Bill even denied workers the ability to “commence or continue any grievance that relates in whole or in part to the development of the revitalization plan or the revitalization planning process.” The Bill proposed a situation where all university employees would be forced to work and would have no avenue to address workplace issues. The Liberals tacitly recognized Bill 100’s constitutional invalidity when they amended it after First Reading. The clause preventing arbitration of grievances was removed. Strikes remain prohibited, however.
The Liberal legislation is surprising given the clarity of the Supreme Court’s recent pronouncements on workers’ right to withdraw their labour. In Saskatchewan Federation of Labour v Saskatchewan the Court found that “the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations.” Freedom of association guarantees working people, subject to reasonable limits, the right to withdraw their labour where an impasse at the bargaining table has been reached. Legislation that prohibits workers from withdrawing their labour, absent a meaningful alternative dispute resolution mechanism or reasonable justification, violates the Charter.
Bill 100 appears to violate 2(d) as it forces university employees to continue working during revitalization periods, denying them their right to strike. There is nothing in the Bill that provides a meaningful alternative dispute resolution mechanism if the parties cannot reach a negotiated agreement. There is also nothing to suggest that the proposed violation of freedom of association can reasonably be justified.
The Liberals have sought to soften the Bill’s apparent scope by characterizing the prohibition on strikes as rare. When questioned about the Bill’s accessibility to government, Liberal Minister of Finance Diana Whalen said the prohibition on strikes would only be available, “in exceptional circumstances.” These assertions do not change the plain language of the Bill, which allows a university employer and government, without consent of workers or their unions, to violate freedom of association. Vague assertions made in House debates do not upend the plain language of legislation.
According to its supporters, the Bill’s labour relations objective is “cost control.” Lowering the cost of a public service is not a sufficiently pressing objective as to justify the violation of a basic Charter right of thousands of people. Further, it is not the moral responsibility of university workers to shoulder the financial burden of providing strong postsecondary education to Nova Scotians. As it was rightly argued by NDP MLA Maureen MacDonald, the legislation would allow “irresponsible management [to] go on a flight of fancy and leave a financial mess and the staff from the cleaners to the faculty will bear the responsibility for that, with Bill No. 100.” The Bill imposes a violation of freedom of association that cannot reasonably be justified.
It is bad enough that the government is trying to push Nova Scotians into lower wages, but doing so by passing legislation that appears to violate their Charter rights is especially disturbing.