Canada: Saskatchewan: New Hotbed Of Labour Law?

With brand new labour and employment legislation, and a major case before the Supreme Court of Canada, Saskatchewan seems to be the current 'centre of the action' in Canadian labour law.

Constitutional Right to Strike?

On May 16, 2014, a very significant labour law appeal – Saskatchewan Federation of Labour v. Saskatchewan, from the Saskatchewan Court of Appeal was argued before the Supreme Court of Canada. The Saskatchewan Federation of Labour and other unions argued that two pieces of provincial legislation violated employees' right to freedom of association protected by the Canadian Charter of Rights and Freedoms. The statutes:

  1. introduced restrictions on the ability of public sector employees who provide essential services to go on strike; and
  2. changed existing labour legislation to make it somewhat more difficult for unions to be certified as bargaining agents, and to expand the scope of permissible communications between employers and employees.

The challenge to the Saskatchewan legislation could have important implications in British Columbia. First, the challenged Saskatchewan legislation has significant parallels to British Columbia's labour laws. British Columbia employers will find familiar the Saskatchewan legislation's limits on public sector employees who provide "essential services" to strike, the requirement for a secret ballot vote for a union to be certified, and the scope of permissible employer communications. If these aspects of the Saskatchewan statutes are unconstitutional, we can expect changes to British Columbia labour laws as well.

Second, the appeal raises the larger issue of whether there is a constitutionally protected "right to strike" in Canada. The Saskatchewan Federation of Labour argued that constitutionally protecting the right to strike is a natural extension of the Court's previous decisions that freedom of association includes a right to collective bargaining.

In our view, constitutionally protecting a right to strike would grant the highest protection available under the law to what is only one model of collective bargaining. Full-fledged strikes are only one way to resolve a bargaining impasse. Workers in British Columbia and other provinces who are governed by essential services regimes are freely able to associate and engage in (mostly) functional collective bargaining relationships with their employers. Constitutionally protecting a right to strike is unnecessary, potentially disruptive to existing collective bargaining regimes in many provinces, and inconsistent with the Supreme Court's past decisions. You see the arguments before the Court here, and read the submissions of the parties and (many) intervenors here.

No matter how the Court decides the issue, its decision will have significant implications for employers and unions in Canada. We keep you updated when the Supreme Court issues its decision.

New Labour and Employment Standards

It is not every day that a province will completely overhaul their employment and labour legislation, which is why the Saskatchewan's recent enactment of the Saskatchewan Employment Act ("SEA") is big news. The SEA is an effort by the Saskatchewan government to modernize employment and labour legislation in the province. It consolidated what were previously 12 pieces of legislation such as the Assignment of Wages Act, Labour Standards Act, Occupational Health and Safety Act 1993, and Wages Recovery Act. Some of the highlights include:

  • Minimum wage tied to Consumer Price Index. The minimum wage will be increased to $10.20 by October 1, 2014 and annual increases will be indexed to the Consumer Price Index.
  • Interns are covered. Interns who perform work which would normally be performed by an employee, or who are being trained, must be paid at least the minimum wage.
  • Flexible hours arrangements. Employers can now implement modified work arrangements (averaging agreements) similar to other provinces without having to first obtain an authorization from the Director of Labour Standards. Even without a modified work arrangement, full-time employees can work a flexible schedule of 10 hours per day for 4 days a week without incurring overtime. Also, like in other provinces, employers and employees can now agree to bank overtime hours for time off in lieu of overtime pay.
  • More time off for retail workers. Retail employees who work more than 20 hours a week in a workplace with more than 10 employees (and do not work under a modified work arrangement) must receive 2 consecutive days off per week. When possible, one of those days should be a Saturday or Sunday.
  • New Leaves. The SEA creates 4 new protected leaves of absence for employees: Organ donation leave; Citizenship Ceremony Attendance leave; Critically Ill Child leave; and Crime-Related Child Death or Disappearance leave. In addition, employees are eligible for protected maternity, parental and adoption leave earlier, after 13 weeks' service instead of 20.
  • Resignation Notice. Employees are required under the SEA to give their employer at least 2 weeks notice of their intent to resign if they have been employed for 13 or more weeks.
  • Increased Fines. Employers may face higher fines for violating the SEA – up to $50,000 for violating labour standards, and up to $1.5 million for violating occupational health and safety standards.

Employers which operate in Saskatchewan should review their contracts, policies and practices to ensure they comply with the new SEA. We will keep you updated on any further issues which arise out of the recent changes in Saskatchewan.

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