Focus On: Labour Law

Tuesday, April 9, 2013 Thursday, April 11, 2013

Bill 85 (The Employment Standards Act): Part VI – Labour Relations

The Death of The Trade Union Act and the Ongoing Assault on Trade Unions

A Union Lawyer’s Perspective

Bettyann Cox

Silversides & Cox

Bill 85 (The Employment Standards Act): Part VI – Labour Relations

The Death of The Trade Union Act and the Ongoing Assault on Trade Unions

A Union Lawyer’s Perspective by Bettyann Cox, of Silversides & Cox

Introduction

“From the beginning, the law was used as a tool to limit workers’ rights to unionize”.1

Since it was first enacted in November 1944, Saskatchewan’s legislation allowing employees to

legally come together to join trade unions of their own choosing for the purpose of bargaining

collectively has been known as The Trade Union Act. Indeed, Saskatchewan’s first

Trade Union Act was unique insofar as it provided civil servants with the right to organize, a first

in all of North America.2 Although not frequently cited, the long title of the existing Trade

Union Act (the “TUA”) succinctly captures its purpose; An Act respecting Trade Unions and the

Right of Employees to organize in Trade Unions of their own choosing for the Purpose of

Bargaining Collectively with their Employers. It is therefore telling in and of itself that almost

seventy (70) years of history is being eradicated with the introduction of Bill 85. Irrespective of

how government and certain employers of the day may attempt to “spin” Bill 85 as being

necessary to address the “modern” reality of labour relations, the significant changes being

proposed will and arguably were intended to have a catastrophic impact on unionized employees

and organized labour in Saskatchewan, while further enhancing the bargaining strength of

employers. And so while it is this writer’s view that the omnibus Bill sounds the death knell for

Saskatchewan’s Trade Union Act and perpetuates the ongoing assault on trade unions, only time

will tell the true impact it has on the trade union movement. The purpose of this paper is to

identify some of the changes that are being proposed in Part VI – Labour Relations and their

potential impact for trade unions. It is hoped that following on this analysis, the reader will see

through the “spin” of government and certain employers, and understand what these proposed

changes are really all about.

They say our day is over; they say our time is through,

They say you need no union if your collar isn't blue,

Well that is just another lie the boss is telling you,

For the Union makes us strong!3

1 Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia [2007] 2 S.C.R. 391 at p. 423.

2 On the Side of the People: A History of Labour in Saskatchewan, Jim Warren and Kathleen Carlisle, Coteau Books,

p. 129.

3 Songs of the Workers To Fan the Flames of Discontent: The Little Red Songbook, Limited Centenary Concert

Edition (IWW), June 2005), pp. 4-5, new verse to Solidarity Forever by Steve Suffet .

Background

On December 4, 2012, the Saskatchewan Legislature introduced Bill 85, The Saskatchewan

Employment Act. Bill 85 is an omnibus bill representing a consolidation of twelve (12) existing

Acts related to employment:

The Assignment of Wages Act

The Building Trades Protection Act

The Construction Industry Labour Relations Act, 1992

The Employment Agencies Act

The Fire department Platoon Act

The Health Labour Relations Reorganization act

The Labour-Management Dispute (Temporary Provisions) Act

The Labour Standards Act

The Occupational Health and Safety Act, 1993

The Radiation Health and Safety Act, 1985

The Trade Union Act

The Wages Recovery Act

Following on the introduction of the Bill, the Minister of Labour Relations and Workplace

Safety, the Honourable Don Morgan, Q.C., invited submissions from interested parties on the

proposed legislation, and in particular, invited comments on any “unintended consequences”.

The Bill was preceded by a consultation paper issued by the Minister of Labour Relations and

Workplace Safety on May 2, 2012,4 which essentially posed a significant number of questions

and invited responses from interested parties within a ninety (90) day window (May 2 to July

31). The consultation paper identified the purpose of the review as intended to:

Identify whether the intent of employment standards, labour relations and specific

occupational health and safety legislation is reflected in the current Acts, and if not, what

changes are necessary and appropriate;

Ensure the protections afforded to workers are adequate, and the duties and

responsibilities of all workplace partners are sufficiently clear so as to ensure compliance;

Address the changing nature of the workplace and provide flexibility to meet the needs of

the evolving employer-employee relationship; and

Better organize the legislation so that it is consistent, consolidated and easier to

understand.

4 A Consultation Paper on the Renewal of Labour Legislation in Saskatchewan

The public was again provided with an approximate ninety (90) day window (December 4 to

March 1) in which to respond to the draft legislation comprising 184 pages. Following on

numerous requests to the Minister that he provide the “side by side” to facilitate a comparison

and tracking of the changes that were being proposed, the Ministry posted a “Table of

Concordance” on its website early in February comprising approximately four hundred and sixty

(460) pages, one hundred and sixty-three (163) pages of which pertain to Part VI – Labour

Relations. Irrespective of the numerous concerns raised in submissions responding to the tabled

legislation that government delay the passage of the proposed omnibus legislation to provide for

further and better consultation, analysis and consensus, government nevertheless seems intent on

passing the legislation in this Spring’s sitting of the Legislature. Additionally, the fact that

substantial aspects of the proposed legislation will be dealt with in yet to be tabled regulations,

provides even greater uncertainty as to the effect the legislation will have.

Whether any amendments will be made to the tabled legislation in response to the submissions

received will not be known until the end of this legislative session. Further, the extent to which,

if any, that the Minister will invite submissions in relation to the requisite regulations, whenever

they are completed, is also unknown. Given the substantial changes being made to the labour

legislation in the Province and hence the labour relations environment, the supposed

“consultation process” afforded by this government is wholly inadequate if not contrary to the

consultation requirements imposed by the Charter. Undoubtedly the actual meaning of the

legislation, as determined by the Labour Relations Board and the Courts, will take at least the

next decade to unravel, thereby bringing ongoing uncertainty and instability to the field of labour

relations within which employees, unions and employers are expected to function. While it may

be good for lawyers, it will ultimately be the citizens and the workers of our province who will

pay the price for this ill-conceived legislative initiative.

The Changes: Part VI - Labour Relations

Part VI – Labour Relations commences at page 113 of The Saskatchewan Employment Act (the

“SEA”). In order to comprehend the changes, it is important to note both what has been added

to this Part as well as what has been removed.

1. (a) Definition of Employee: s. 6-1(1) (h)

The first significant change is in respect of the definition of “employee” and the expansion of the

exclusionary provisions of who is not an “employee” because of the managerial functions

performed. Under the TUA, the exclusion is: (A) “a person whose primary responsibility is to

actually exercise authority and actually perform functions that are of a managerial character

[emphasis added]; or (B) a person who is regularly acting in a confidential capacity with respect

to the industrial relations of his or her employer …”. Under the SEA, the definition in (A)

removes both references to “actually”. This is troubling insofar as it would no longer appear

necessary to “actually” perform the managerial functions but simply assign the managerial

functions to an employee to warrant his or her exclusion. In the light of existing Board

jurisprudence where they look to the duties the employee “actually” performs, the removal of

this word may be interpreted by the Board as legislative intention to broaden its previous

interpretation, thereby providing uncertainty to both parties as to who should be in or out of

scope.

The additional changes under the SEA in (B) confuses the issue even more and could

significantly expand the scope of exclusions; (B) a person whose duties include activities of a

confidential nature in matters relating to any of the following: (I) labour relations; (II) business

strategic planning; (III) policy advice; (IV) budget implementation or planning. Under the TUA,

the person needs to be regularly acting in a confidential capacity with respect to the

industrial relations of the employer. Under the new provision, the legislation is essentially

defining what constitutes a “confidential nature” and “industrial relations”, namely any one of (I)

labour relations; (II) business strategic planning; (III) policy advice; (IV) budget implementation

or planning, and a person need only have assigned duties which include one of these to justify

being excluded. So, for example, if you hold a staff retreat whereby all employees are engaged

in business strategic planning; or if you look at government, and the number of positions

currently within the scope of the Union with titles, and presumably corresponding duties, of

“policy advisor”, arguably these positions could now be found to warrant being excluded.

While one might ask what is the big deal if additional exclusions are added, from the Union’s

perspective it could mean the difference in having sufficient support on a certification

application if it has included these employees in support of its application. Additionally, if an

employer successfully makes application to exclude additional employees on the basis of the

expanded definition, it may also potentially impact on the Union’s bargaining strength if it were

to exercise a strike mandate particularly in the public sector where employers will have the

benefit of designating employees performing “essential services”.

Undoubtedly, at a minimum, it will mean the time and expense of responding to more Employer

applications to the Board as Employers seek to have the Board rule on the amendments to

determine the extent to which the Board will grant additional exclusions.

Who benefits: the Union; the excluded employees, who are no longer afforded Union protection,

overtime benefits, or the right to belong to a union of their choosing; or the Employer?

(b) Definition of “supervisory employee” s. 6-1(1)(o)

More problematic is the new category of “supervisory employee” and the provisions related

thereto.

“supervisory employee” means an employee who regularly exercises one or more of the

following duties: [underlined emphasis added]

(i) supervising employees;

(ii) independently assigning work to employees and monitoring the quality of work

produced by employees;

(iii) scheduling hours of work or overtime;

(iv) providing comments to be used for work appraisals and merit increases for

employees;

(v) recommending discipline of employees.

Determination of bargaining unit ss. 6-11 (3) to (6)

(3) Subject to subsections (4) to (6), the board shall not include in a bargaining unit any

supervisory employees.

(4) Subsection (3) does not apply if:

(a) the employer and union make an irrevocable election to allow the supervisory

employees to be in the bargaining unit; or

(b) the bargaining unit determined by the board is a bargaining unit comprised of

supervisory employees.

(5) An employee who is or may become a supervisory employee:

(a) continues to be a member of a bargaining unit until excluded by the board or an

agreement between the employer and the union; and

(b) is entitled to all the rights and shall fulfill all of the responsibilities of a member of the

bargaining unit.

(6) Subsections (3) to (5) apply only on and after two years after the date on which

subsection (3) comes into force.

This definition is extremely broad insofar as the employee only needs to “regularly exercise” one

of the duties set out in the definition. As such, someone who supervises or schedules employees

irrespective of whether they perform any of the other duties will nevertheless be found to be a

supervisory employee. Upon being determined a “supervisory employee” pursuant to the SEA,

the employee will be required to be placed in a separate bargaining unit unless the employer and

union make an irrevocable election to keep the supervisory employees in the bargaining unit or

two years after the date on which ss. 6-11(3) comes into force.

Not only will these provisions fracture the existing bargaining unit, but for employers who have

very few employees acting in this capacity, the strength of the supervisory employee bargaining

unit may be virtually nonexistent. In workplaces where more than one union represents the

employees, and there are “supervisory employees” within both bargaining units, the Board may

determine that only one bargaining unit of “supervisory employees’ is appropriate thereby

forcing employees to vote or resulting in a further fracturing of bargaining units if the Board

determines that each unit of supervisory employees has a sufficient community of interest to

warrant stand alone units. Alternatively, if a vote is order, Unions will be forced to compete

against each other in ongoing certification drives thereby potentially creating disharmony within

the house of labour. Employers may also find it difficult to fill these positions if the employees

fear being moved into a smaller unit where their bargaining strength is significantly diminished.

The practical reality of workplace accommodations may also be impacted and while in current

circumstances, separate bargaining units represented by different union may be required to

accept employees from the other bargaining unit into its membership as a requirement of the

accommodation, this would not be allowed in respect of “supervisory employees’ because of the

legislation. The ability to bid on jobs within the workplace would also be impacted as often

employees are not allowed to bid into vacancies within a different bargaining unit, particularly

where the position is awarded on the basis of bargaining unit seniority. This is even more likely

the case where the bargaining units are represented by different unions. This would be a

potential nightmare in healthcare, where “Charge Nurses”, for example, can vary from shift to

shift but who would nevertheless be required to potentially move in and out of a bargaining unit

on the basis of whether they were in charge or not. In the trades, anyone who was designated

“foreman” for a particular job could be in one bargaining unit on one job site and in another

bargaining unit on another site. Whether the provisions of the existing collective agreement

would apply in any of the cases while it was sorted out or, upon an order of the Board, the parties

were required to engage in collective bargaining is also unclear. It is also questionable whether

this provision would comply with the freedom of association requirements of the Charter.

From the Union’s perspective, again this provision could undermine its bargaining strength and

the ability to effectively carryout a strike mandate in circumstances where the “supervisory

employee” bargaining unit is either not represented by the same Union or the expiry dates of the

collective agreements would not be in sync thereby providing the employer with additional

employees to carry out the work during a strike. As well, many collective agreements contain

provisions prohibiting management from performing bargaining unit work. Undoubtedly, a union

would seek to extend this prohibition to supervisory employees in a separate bargaining unit

thereby limiting the duties that these employees could perform for an employer. Little wonder

that both unions and employers have expressed concern over these provisions leaving one to

question who benefits: certainly not the Unions who currently have “supervisory employees”

within their membership in particular bargaining units.

Indeed, in the August 8, 2012, submission by the Saskatchewan Health Regions & Cancer

Agency Council of CEO’s, they expressed the following concern about the creation of separate

bargaining units as follows:

Recommendation: While on first review it may seem beneficial to have employees in a

different union, it raises issues related to the management of bargaining unit work. If

they are not in the same union, what duties could they do that would not be considered

bargaining unit work. The scope may prove to be too narrow to be of value. Presently it

is workable to have them in the same bargaining unit with limitations relation to

discipline and discharge.

2. Internal Union Affairs

While accepting a person into the membership of a trade union will vary to a certain degree from

union to union, unions will spell out the requirements and obligations of membership on

membership cards as well as in their respective Constitutions and Bylaws. Some unions have

voting procedures whereby the acceptance of a new member needs to be voted on by the

membership; this is often the case within craft unions where it is the union who dispatches

workers to a worksite following on receipt of a call for qualified workers by a unionized

contractor. The strength of the Union is only as strong as its membership and under the TUA,

there was a recognition that the Union may be required from time to time to enforce the

provisions of its Constitution and Bylaws in order to advance and secure the interests of the

collective as a whole. Section 36.1 of the TUA addresses the issue of “employee-trade union

disputes” and imposes on the union an obligation to apply the principles of natural justice in

respect of such disputes. It also provides every employee with an entitlement to “reasonable

notice” of union meetings and not to be “unreasonably” denied membership in the Union.

Subsections 36(4) to (6) provides a trade union with the ability to “assess or fine any of its

members who has worked for the struck employer during a strike held in compliance with this

Act a sum of not more than the net earnings that employee earned during that strike”, subject to a

requirement in ss. 36(5) that the Union’s constitution provided for such an assessment or fine

prior to the strike commencing, and ss. 36(6) provided for the collection of the fine or

assessment.

The SEA no longer contains a provision which recognizes the right of a trade union to impose

fines or assessments on its members who have worked for the struck employer. However, it is

unclear as to whether a Union is prevented from taking this action and seeking enforcement of

the “debt” through the courts. While ss. 6-5 and 6-6(1) and (2) prohibit certain actions against

employees including using coercion or intimidation of any kind that could reasonably have the

effect of “compelling or inducing a person to become or to refrain from becoming or to continue

to be or to cease to be a member of a union”, the restriction with respect to imposing a

“pecuniary or other penalty” only appears to relate to circumstances whereby the employee may

testify in a proceeding pursuant to Part VI, or make a disclosure, or has made an application,

filed a complaint or otherwise exercised a right conferred by Part VI ( for example, presumably a

decertification application or duty of fair representation application or a final offer vote) or

because the person has participated or is about to participate in a proceeding pursuant to Part VI.

Insofar as one could argue that upon a strike vote having been obtained by the Union in

compliance with the provisions of the SEA, and the strike mandate is exercised in accordance

with the provisions of the Act, arguably crossing the picket line and working for the struck

employer is not a right conferred on an employee by Part VI. As such, provided the discipline

the Union takes against the employee is conducted on the application of the principles of natural

justice, pursuant to ss. 6-59(1), and the action is not “discriminatory” pursuant to ss. 6-59(2).

Indeed, on the basis of this argument and the provision limiting the amount of the “assessment”

or “fine” having been removed from the SEA, the “levy” imposed could be for whatever amount

the Union had determined was appropriate within the authority of its Constitution.

It is not only in circumstances where an employee has crossed the Union’s picket line to work

for the struck employer that a Union may want to discipline one of its members. If a member

had engaged in illegal strike activity by fostering a “wildcat” for example, for which the Union

could be liable under the SEA and fined, the Union should be able to impose discipline on its

member to enforce the serious consequences of such an action. Whether, the Union would be

successful in collecting the fines imposed on its members in either scenario is a question that will

remain uncertain until pronounced upon by a Court. Insofar as the Board is responsible for

determining alleged breaches of a duty of fair representation by an employee, and the new

penalties that it can impose upon a Union found to have breached its duty, arguably the Board

should have been empowered with the ability to enforce the penalties imposed by a Union

against a member found to have breached its obligations of membership under the Union

Constitution. It is to the new provisions related to the Duty of Fair Representation that are next

addressed.

3. Duty of Fair Representation ss. 6-60 (1) and (2) and 6-61 (1) and (2)

Under s 25.1 of the TUA, the provision pertaining to the duty of fair representation, it simply

stated that “every employee has the right to be fairly represented in grievance or rights

arbitration proceedings under a collective bargaining agreement by the trade union certified to

represent his bargaining unit in a manner that is not arbitrary, discriminatory or in bad faith”.

The Board relied upon its powers contained under ss. 5(g) fixing and determining monetary loss

in ordering what it determined to be an appropriate remedy.

The provisions contained in the SEA are significantly more encompassing and will undoubtedly

result in even more applications of this sort from members and former members of a Union. The

new provisions no longer require that the union be “certified” as the bargaining agent such that

employees covered by “voluntary recognition” agreements will be covered. Additionally, there

is no time restriction specified for the bringing of a complaint and since the provision expressly

recognizes the ability of a “former employee” to bring a complaint, undoubtedly this will result

in complaints being pursued at any time by the Employee. Under the provisions of ss. 6-61 (1)

and (2), the powers of the Board are significantly expanded regarding the issue of remedies that

the Board may grant including in addition to a recognition of “any other remedies the board may

grant”, extending any step in the grievance procedure notwithstanding the expiration of time

limits if the denial has resulted in “loss of employment or substantial amounts of work by the

employee”; there are reasonable grounds for the extension; and the employer will not be

substantially prejudiced, “either as a result of an order that the union compensate the employer

for any financial loss or otherwise”. The provision further provides the board with authority to

“impose any conditions that it considers necessary on an order under ss. (1). It is ironic that a

union found guilty of a duty of fair representation may be required to compensate an employer,

who would have imposed the disciplinary action on the employee, for any financial loss or

otherwise. Whether this will see the board ordering “costs” against the union including requiring

the union to pay for independent counsel for the employee remains to be seen. Additionally,

insofar as the board’s role thus far in determining applications alleging a breach of the duty of

fair representation has primarily focused on whether the union acted in a manner that was

“arbitrary, discriminatory or in bad faith” in deciding not to pursue a grievance, and the fact that

the board may now extend the time for taking any step in the grievance procedure if it is satisfied

that “the denial of fair representation has resulted in loss of employment” and thereby implies

that the board would need to find that reinstatement would have occurred expands the scope of

the inquiry labour relations boards usually make in these types of applications.

4. Financial Statements of Unions ss. 6-62(1) – (3)

It is the view of this writer that this “new” provision in the SEA benefits the employer as much

or more than the union’s members because undoubtedly the employer will obtain a copy of the

audited financial statement as well. As such, it will be able to see how well positioned the Union

is financially to incur legal costs as a result of the employer breaching the provisions of the

collective agreement and the financial ability of the union to pursue arbitration as a result, or to

determine whether a union is financially able to exercise a strike mandate and withhold the

employees labour. Additionally, small union locals will incur an unnecessary and potentially

significant financial expense in getting their financial statements audited, not to mention that

these officers are usually volunteers. Union members already have access to their union’s

financial records pursuant to the Constitutions and Bylaws of their Union. If a member is

encountering difficulty in obtaining these records, there are provisions contained in the

Constitutions and Bylaws for obtaining such disclosure. Moreover, it is questionable whether

these provisions may run afoul of the principle of freedom of association enshrined in the

Charter and The United Nations’ Freedom of Association and Protection of the Right to

Organise Convention, 1948 (No. 87), ratified by Canada on March 23, 1972. It is a significant

intrusion into the internal affairs of the union.

5. Notification of Voting Results ss. 6-23(1)(4) and Employer’s Last Offer

Similar to the concerns expressed in number 4 above, this new provision which requires the

union to make available to the employees who were entitled to vote the results of a secret ballot

vote, which would include ratification votes and strike votes, including the number of ballots cast

and the votes for, against or spoiled, will likely benefit the employer more than the union

members insofar as the employer will know the extent of a union’s strike mandate or the strength

of the membership in accepting or declining an offer. As such, the employer will be in a position

to assess the degree by which it may want to increase a “hard-bargaining” decision or even

advance a final offer. Concerns have also been expressed by Unions that the fourteen (14) days

mandated for the commencement of ratification votes pursuant to ss. 6-39(1) of the SEA is too

short a period of time, particularly where it is a large bargaining unit and the union may need to

travel across the province to provide the necessary detail to its members in advance of the vote

commencing and provide answers to its members questions.

Additionally, the fact that the Employer can potentially table its “last offer” “at any time after a

notice to engage in collective bargaining has been given” and then apply to the board to conduct

a vote among the employees on this offer, pursuant to SEA ss. 6-36(1), is already a questionable

application of the duty to bargain in good faith. This section does not require that the parties

have reached an impasse in bargaining, rather it is simply in respect of voting on the employer’s

last offer.

Under the TUA, an application to the Board requesting a vote on the employer’s final offer was

only allowed following on a strike having continued for 30 days, and was on the basis of a

special mediator’s recommendation to the board.

Again it is submitted that these provisions are for the benefit of the employer not the union.

6. Changes to the Collective Bargaining Process and the Ability to Issue Strike &/or

Lockout Notice ss. 6-27; 6-31- 6-35

Pursuant to ss. 6-27 (1) to (3) of the SEA, the “open period” for serving notice to negotiate to a

renewal of or revisions to the collective agreement has been expanded from the previous not less

than 30 nor more than 60 days from the expiry of the collective agreement under the TUA to not

less than 60 days nor more than 120 days before the expiry. Upon notice being served, the

parties are required to immediately engage in collective bargaining.

If after bargaining in good faith, the parties are unable to conclude a collective agreement, ss. 6-

34(1) requires the parties to provide notice to the minister that they have reached an impasse, at

which point the Minister is required to appoint a labour relations officer or special mediator, or

establish a board of conciliation pursuant to ss. 6-34(2).

Upon the appointment by the Minister, no strike is to be commenced or lockout is to be declared

unless the labour relations officer, special mediator or conciliation board has informed the parties

it does not intend to recommend terms of settlement or terms of settlement have been

recommended but not accepted; the labour relations officer, special mediator or conciliation

board has informed the minister and the parties in a report that the dispute has not been settled;

and until the expiry of a cooling-off period of 14 days after the report of the labour relations

officer, special mediator or conciliation officer has been provided to the minister. The parties are

then free to provide the other and the minister with at least 48 hours written notice of the date

and time that the strike or lockout will commence pursuant to ss. 6-35.

Insofar as Union’s have sometime sought the appointment of a special mediator from the

Minister and been declined, this mandatory provision may be welcomed. As well, at least in the

construction sector, the parties were required to go through a conciliation process prior to being

able to issue a strike notice or declare a lockout. However, insofar as the employer is entitled to

apply to the board to force a vote on its last offer without there being a requirement to have

reached an impasse in respect of the bargaining or even without having sought the assistance of a

labour relations officer, special mediator or conciliation board, it seems to run counter to the

imposed process provided in these sections of the SEA and the cooling off period.

It remains to be seen how the parties view these provisions once they have had the opportunity to

utilize them.

7. Changes to the Certification and Decertification Procedures ss. 6-9 to 6-18

The last significant changes that need to be commented on in relation to the SEA are in respect

of revisions to the certification and decertification procedures contained in Division 3. The

expanded “open period” is relevant for certification applications where a certification order

already exists such that it is not less than 60 days nor more than 120 days from the date of the

Order or the expiry of the collective agreement where a collective agreement exists. Provisions

respecting voluntary recognition are also contained in s. 6-18 of the SEA. While voluntary

recognition agreements occurred under the current regime, they had never been expressly

referred to in Saskatchewan’s legislation. Insofar as a “change” in union representation

continues to require the union having been “certified” as the bargaining agent, presumably the

open period requirements will continue not to apply in applying for certification of a “voluntarily

recognized” bargaining unit and Union’s can continue to file applications in the usual way.

More significant are the provisions which allow for an application to cancel a certification order.

S. 6-14.1 sets out the procedure for when a union ceases to be a union and allows for an

employee within the bargaining unit or the employer named in the certification order to bring an

application to cancel the order.

S. 6-15 provides an employee within the bargaining unit or the employer named in the

certification order to apply to the Board to can the certification order in circumstances where the

union engaged in an unfair labour practice or otherwise contravened Part VI before the

certification order was issued.

S. 6-16 provides an employee in the bargaining unit or an employer with the ability to make

application to the board to cancel the certification order where the union has been inactive in

promoting and enforcing its bargaining rights for a period of three (3) years – the “abandonment

provision.

S. 6-17 provides the employee with the ability to bring an application in the usual way.

Clearly these provisions are for the benefit of the employer particularly as it relates to the

employer’s ability to bring an application for decertification.

One final provision in the Act is to be noted and it is found under the Unfair labour practices –

union, employees section of the SEA in ss. 6-64(1) (g). This new provision makes it an unfair

labour practice for a union who is replaced as a bargaining agent or if a certification order is

cancelled to:

(i) fail or refuse to facilitate the orderly transfer or transition of any benefit plan, program

or trust that is administered or controlled by the union to the new union or to the

employees; or

(ii) to fail to ensure so far as is practicable, that the benefits that an employee is receiving

under a plan, program or trust mentioned in subclause (i) are continued by facilitating the

transfer, assignment or joint administration or division of any contract, fund, asset or

liability that relates to the benefits of those employees.

This clause has the potential to significantly impact on the building trade unions in particular

who often administer or oversee as trustees various benefit plans contributed to by the employer

on behalf of the hours worked by the employees. Presumably it would require actuaries to

review the plans, the contributions made and benefits withdrawn to determine whether there even

is a surplus in the plan or a liability with no indication as to who is responsible for absorbing

what can only be significant actuarial costs. Not surprisingly, no reciprocal unfair labour

practice is imposed on employers whose bargaining rights have been succeeded. As well, as it

pertains to the new bargaining units for “supervisory employees” it is unclear whether or how

this provision would apply in these circumstances or whether they are intended to apply to

“voluntarily recognized” bargaining agents.

Conclusion

It is the view of this writer that the death of the Trade Union Act and the implementation of the

Saskatchewan Employment Act will cause years of litigation, uncertainty and potential unrest

within the labour relations environment in this province. It is hoped that the Government pauses

to consider whether this is what is needed during a period of economic prosperity where

employers lament a shortage of workers and the province tries to recruit foreign workers to fill

the void. Why would they want to come here with this environment and how will their rights be

protected when Union will be so busy staving off duty of fair representation applications of

former members, producing audited detailed financial reports; fighting ongoing decertification

applications that can occur at any time and spending hundreds of thousands of dollars in

litigating the new provisions of the SEA? Whether trade unions will survive this round of assault

remains to be seen; most certainly the Trade Union Act will not.