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Saskatchewan’s Bill 85: When Ideology Trumps Good Sense?

Saskatchewan has a big problem.  It’s not unemployment. It’s the opposite.  The province must attract some 60,000 new workers to the prairie province in the next 5-7 years to meet the labour demand necessary to keep the economic engine running.  Labour and employment laws can play a role in this.  They can help encourage high paying jobs with stable hours and decent benefits of the sort that workers like.

Instead, the government’s response has been to head down the typical neoliberal route of gutting employment and labour laws. This strategy has been implemented through a series of bills, including Bill 5, Bill 6, and the new, super complicated omnibus Bill 85. The first two bills eliminated the effective right to strike for many public sector workers and introduced changes designed to make unionizing more difficult for Saskatchewan’s workers.  Bill 85 is a mammoth bill that lowers employment standards protections and injects instability and uncertainty into the labour relations climate.

This is surely the wrong answer.  Bill 85 is standard neoliberal fare, with a few twists.  It reduces statutory protections for workers and undermines collective bargaining rights.  Whatever other results these sorts of changes might produce, reducing statutory protections and collective bargaining coverage has never, anywhere, led to higher wages, better benefits, and less precarious jobs.  We know that in Canada, unions bargain wage premiums of between 8-15 percent, depending on what study you look at, and that collective agreements have a positive spillover effect on nonunion wages and benefits.  It follows that reducing collective bargaining will have a downward influence on wages and benefits, the opposite of what Saskatchewan needs, according to economists.

The Policy Context

This paper by Professor Emory of U. of Calgary notes that an important obstacle to achieving this difficult goal is that Saskatchewan’s employment patterns make the province unattractive to out of province workers.  Many jobs have variable hours, or have a seasonal component.  Wages on average are competitive with other provinces, but being competitive isn’t enough to get people to pack up their families and move to the prairies, according to economists:

Saskatchewan will inevitably need to meet growing labour demand by focusing on increasing its levels of interprovincial migration, immigration and retention of skilled labour. Increasing interprovincial migration levels will prove to be a challenge, however, as wage rates across provinces have converged, meaning that wage increases in Saskatchewan are keeping pace with those of other provinces, rather than stimulating further in-migration.

Therefore, from a labour policy perspective, the province needs to be pursuing policies that encourage stable, full time, high paying jobs.

bill 85Why then is Saskatchewan’s Government trying so hard to undermine those laws we know tend to improve labour conditions, including labour and employment laws?  One answer is that their desire to weaken a political foe–the labour movement–is trumping the common sense decision to avoid policies that will drive down labour conditions.  Another  answer is that they can’t help themselves.  Gutting labour and employment laws and undermining collective bargaining rights is too deeply embedded in their psyche.  A core belief of the neoliberal religion, of which the Saskatchewan Party is an adherent, is that laws that protect workers and recognize any value in collective bargaining impede labour market efficiency by creating rigidities that cause unemployment and artificially high labour costs.

Usually, these sorts of arguments are made in the context of a bad economy, with high unemployment.  That was the  line used by Mike Harris in Ontario in the 1990s when he enacted laws similar to many we are now seeing in Saskatchewan:  we need more ‘flexibility’ in employment standards laws (i.e reduced protections and enforcement) and to ‘modernize’ collective bargaining laws (i.e. make it harder for workers to unionize and weaken existing unions),  in order to show the province is “open for business” (i.e. labour costs and regulation will be low here).  These laws will cause  wages and benefits to fall and, therefore, companies will come to the province and hire more workers.  Conservative Party leader Tim Hudak is making the exact same arguments in Ontario today. Same old, same old.

But whatever you might think of the neoliberal faith that gutting labour and employment  laws will attract more jobs by reducing labour costs, Saskatchewan’s problem isn’t high labour costs and unemployment.  It’s economy is booming, because of its natural resources.  Natural resources do not move in search of lower labour costs.  Unemployment is low.   Labour laws, employment laws, unions are demonstrably NOT a deterrent to job creation in Saskatchewan.   Saskatchewan doesn’t have enough workers to fill existing jobs, and expected future jobs.   It needs to attract workers, and workers like high wages, good benefits, stable hours.

Bill 85:  A Poison Pill Injected Into the Labour Relations Climate

Which brings us back to Bill 85.  Sadly, I’ve now spent many hours reading this Bill.  A serious time commitment is needed, because the Bill is a lesson in opacity and ambiguity.  The government claimed its objective was to simplify the law.  One can only marvel at how spectacularly it has failed in this mission. The Bill runs almost 200 pages long, and incorporates over a dozen statutes.  It leads the reader down trails that suddenly end, with no answer to obvious questions.

For example, one part of the Bill says that anyone who makes a work schedule or assigns work is now a ‘supervisory employee‘, and supervisory employees can no longer be in bargaining unit with other employees.  This will suddenly result in untold hundreds of workers who have no real authority over coworkers being swept out of their collective agreement.  But the Bill tells us nothing about what happens to these people once they are sucked out of their existing collective agreement. Do they become nonunion, and forfeit all of their collective agreement rights?  Can they now be fired by the provision of notice, rather than with just cause? Does the old collective agreement somehow travel with them into a new bargaining unit?  No clue.

The Bill creates a new very broad class of ‘confidential employee’ unparalleled anywhere in North America, for the sole purpose of stripping hundreds, if not thousands, of workers from collective bargaining rights altogether.  Now, anyone who works in a “policy” job or who deals with budgets or ‘business planning’ can be excluded from collective bargaining protection, for no legitimate policy reason I can think of.

The Bill includes many  provisions that fly in the face of common sense labour relations lessons long accepted by political parties of all stripes. For example, one provision allows employers to take a collective agreement proposal directly to employees, before it has had even a single bargaining session with the union.  The idea is to permit an employer to avoid the duty to bargain in good faith, a move that will unnecessarily poison the bargaining table dynamic. Another section says that a union cannot strike until it has completed mandatory government conciliation, but that the union cannot access that conciliation until the employer writes a letter to the government saying that the parties have reached an impasse in bargaining!  So an employer can effectively prevent a strike by refusing to send the letter.  That may not be intention of the Bill, but that is what it says.

Probably the oddest part of the Bill is its preference for introducing uncertainty, instability, and tension into employment relations, for no apparent reason.  Even employers are questioning the Bill’s provisions. They should be.  The Bill will cause unnecessary tensions and poison labour relations relationships, making unions less likely to cooperate. It encourages fragmentation, and multiple rounds of collective bargaining where one has worked just fine.  The Bill encourages the carving up of existing bargaining unit structures and collective agreements into many smaller bargaining units.  For example, in addition to ‘supervisory employees’ being carved out of existing units, the Bill also encourages unions to raid each other in attempts to carve out ‘portions’ of bargaining units. It should come as no surprise that if you take one bargaining unit and carve it up into two or more, you are creating the potential for more strikes, more administrative burden, more work jurisdiction disputes, and more costs to unions and employers alike.

Inexplicably, the Bill removes the ‘open periods’ during which union raids and decertification applications can take place.  Open periods are there to protect employers from having continuous, disruptive campaigning over unionization questions in the workplace.  They are intended to ensure a period of calm, during which everyone can focus on work, rather than engaging in heated debates about unionization.

By eliminating the open period concept, Bill 85 introduces perennial campaigning into Saskatchewan’s workplaces.  Unions will now always be in election mode.  The government might think this will make unions more ‘responsive’ to their members.  It might, but that is not always a good thing for employers, or the workers. Unions are given the responsibility in our system to make tough decisions and compromises that not all employees will be happy with.  Employers benefit from this policing and balancing role.  By introducing a perennial election period, Bill 85 will make unions less willing to make decisions that might benefit employers, but that will anger small, but vocal dissidents within the bargaining unit.  I doubt employers will find this useful.

The Bill grants employers the right to enter into collective agreements with “voluntarily recognized” unions, that will bind employers, including requiring the workers to join the union and pay dues.  A voluntarily recognized union appears to be able to waive some employment standards rights on behalf of employees.  But, no where in the Bill does a voluntarily recognized union need to demonstrate that workers wanted the union, or approved of any agreement it enters into.  I can offer no sensible explanation as to why the Government thinks it is good policy to completely ignore employees wishes.

The employment standards changes are standard material from neoconservative governments.  It’s all about reducing the government’s oversight role and giving employers more discretion to work around core standards like hours of work and overtime pay.  For fun, try and figure out the new overtime pay provisions (Sections 2-17, 2-18, 2-19, 2-20).  Would a typical employee have any clue when they are entitled to overtime pay?  Do you think that this complexity will help improve compliance with the laws?  Will it help workers?

Bill 85 has not yet passed, and I understand that there is resistance not only from labour, but from employers as well.  Of course, there are some on the employer side that want to see the Bill driven through regardless of any problems.  My sense of the Bill is that it will create years of tension and litigation. It will be a boon for labour lawyers, who will spend years at the Labour Board and in courts trying to figure out what the law means, at great expense to employers, unions, and taxpayers alike.  More importantly, because the Bill is so ridiculously one-sided in favour of the most aggressive of antiunion employers, it lacks the legitimacy and balance that is characteristic of labour law reforms that have staying power.  Its far swing to the right will one day be met with a swing back.  That much we can count on.

In the meantime, the Bill may contribute to a reduction in collective bargaining, and the higher pay, benefits, and more stable hours we know empirically it brings. The Bill may lead to longer hours with lower pay for many Saskatchewan workers.  That appears to be the objective.  We can only scratch our head and wonder how this will make workers flock to Saskatchewan.


5 Responses to Saskatchewan’s Bill 85: When Ideology Trumps Good Sense?

  1. John

    May 9, 2013 at 2:04 am

    Perhaps this will turn out to be the mirror image of the Ontario NDP’s Bill 40, a union wish-list piece of legislation that lasted until the Tories replaced the NDP five years later and repealed Bill 40 virtually the day after being elected.

  2. admin

    May 9, 2013 at 1:17 pm

    John, yes, history does suggest that Bill 85 will become a pendulum statute, most of which will survive only until the Saskatchewan Party is defeated.

  3. Victor Lau

    May 13, 2013 at 4:59 am

    Thank you for taking the time to read through the 200 pages of Bill 85.
    And I am especially pleased that you took the time to also highlight some examples of deficiencies in the Bill.
    I agree that eventually most of this legislation (if passed) will be removed or entirely Revamped due to the inability or impossibility of compliance Or understanding.

    It really is too bad that the SaskParty chose to go down this route.

    A real review of Saskatchewan labour laws to improve the working conditions for all workers and businesses alike would have shown a better side of the SaskParty.

    The Green Party looks forward to continuing the fight to highlight Bill 85′s faults and truly hopes major positive amendments can be made before any of this legislation gets passed.

  4. Pingback: On the Abuse of Language: “Modernizing” Labour Relations

  5. Sharon Ash

    May 13, 2013 at 11:26 pm

    This is where we now get the true colors of the Conservative Party. It has always been a known fact that they are antiunion, that they really are cats that don’t change spots even when they change the name of the party, they really don’t listen to the people after they get elected, in fact it doesn’t seem to matter that they behave like criminals because like the Conservative Party who were in power before them they believe they are above the law. The only thing that will be a Godsend will be an election to get rid of them.

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