On a Potential Constitutional Challenge to the Universities Accountability and Sustainability Act and the Limitations of Legalistic Labour Strategies
How should workers fight repressive legislation, in the courts or in the streets? While a favorable judgement can bring concrete benefits to workers, there are serious drawbacks to a legalistic strategy. Pursuing a court challenge is an enormous drain on a union’s resources, time, and militancy. This article provides an overview of the Universities Accountability and Sustainability Act, an opinion on whether or not it is constitutional, and a discussion of how labour legality shapes workers’ struggles.
Bill 100, now the Universities Accountability and Sustainability Act, passed May 11th, 2015. It passed despite vocal protests of university workers and their allies in the streets, in the press, and in Province House. It passed notwithstanding a clamour of objections that the Act was blatantly unconstitutional. Now that the initial battle against the Act is over, workers have a lull to analyze their legal rights and consider the terrain on which they want to continue their struggle.
How does the Universities Accountability and Sustainability Act affect workers’ right to strike?
The Act allows universities to initiate a “revitalization planning process” after getting the approval of the school’s Board of Governors and giving notice to the Minister of Labour and Advanced Education. If the university has unionized employees, and is determined by the Minister to have a “significant operating deficiency” the university “may elect” to implement section 8 of the Act. Section 8 prevents unionized workers from striking and the university from locking out unionized workers. It also bans “any person or organization” from “doing anything” or “failing to do anything” that would “aid or abet a unionized employee” to not comply with the Act. So, if anyone were to encourage workers to strike during a revitalization period they too would be in violation of the Act. Any union member who violates section 8 is liable for a fine of up to $100, 000 in total, or for a fine of $10, 000 per each day of continuing violation. Any person (such as an aiding-or-abetting labour organizer) who violates section 8 can be fined $200 per day for violating section 8, or up to $1000 in total.
Is the Universities Accountability and Sustainability Act Unconstitutional?
Relevant Sections of the Constitution:
s 2 (d) of the Canadian Charter of Rights and Freedoms, which guarantees the freedom of association
s 1 of the Canadian Charter of Rights and Freedoms, which gives the government the ability to justify its rights infringement by demonstrating it is a “reasonable limit in a free and democratic society.” Procedurally, this means that courts will first consider the severity of the Charter infringement, then consider a section 1 justification for the government’s actions.
Many labour organizations and activists argue that section 8 is unconstitutional, since the Canadian Charter of Rights and Freedoms protects the right to strike. This claim is staked mostly upon the precedent of Saskatchewan Federation of Labour v. Saskatchewan, decided by the Supreme Court of Canada in January 2015. In that case, the court stated that “to determine whether there has been an infringement of s. 2(d) of the Charter, the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining.”
The Saskatchewan case was decided partially in the favour of the Federation of Labour. The piece of legislation which the Supreme Court ruled was unconstitutional prohibited public service workers who were deemed by the government to be performing “essential services” from striking. The court found that the legislation violated s. 2 (d) of the Charter’s right to freedom of association in a way that could not be justified by the government under section 1 of the Charter. Section 1 holds that no right guaranteed in the Charter is absolute. The government always has the opportunity to defend its legislation on the basis that its rights-infringing actions can be “demonstrably justified in a free and democratic society.”
This precedent is promising if Nova Scotian workers were to challenge the Act in court. Some aspects of the Act parallel the Saskatchewan legislation that the court struck down. It seems probable that the Act’s section 8 outright ban on strikes during revitalization periods would meet the criteria for a breach of s. 2 (d). In the Saskatchewan case, the court decided that a similar flat ban on designated essential service workers’ right to strike violated s. 2 (d). A strong argument could be made that even though section 8 (1) of the Act states that the prohibition on strikes does not preclude the university from engaging in collective bargaining with workers, the legislative infringement with the right to strike remains “a substantial interference with a meaningful process of collective bargaining,” the test for a s. 2 (d) Charter infringement outlined in the Saskatchewan case. The strike is workers’ most powerful weapon. To deprive workers of the right to use it is arguably a very substantial interference in meaningful collective bargaining.
It is likely that the bulk of a court’s analysis of the Act, as with the Saskatchewan case, would concern whether the government’s legislation could be justified under s. 1 of the Charter. In the Saskatchewan case, the court deemed the “determinative issue” to be whether or not the government minimally impaired workers’ charter rights. Could they justify their actions by claiming they impaired rights “no more than was necessary?” The court found in the Saskatchewan case that workers’ rights were not minimally impaired for a couple of reasons. First, because the Saskatchewan legislation gave to the province the unilateral authority to deem any public service “essential” and therefore to prevent any public employee from striking. The court deemed such an authority “beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.” Second, the legislation did not allow for any alternative route through which collective bargaining could be maintained in the midst of a strike ban. The court suggested that if the legislation allowed for an arbitration process or another “one of the meaningful dispute resolution mechanisms commonly used in labour relations” the strike ban could be justified. As it stood, the Saskatchewan legislation’s rights infringements could not be “demonstrably justified” under section 1.
Hence, the Act is similar to the overturned Saskatchewan legislation in one significant way, and different in two others. They are similar because both Acts outright ban strikes without setting out an alternate method for “meaningful dispute resolution”, such as an arbitration process, despite the fact that Nova Scotia’s legislation does allow for continued collective bargaining. A court might find that nonetheless, the Nova Scotian Act does not “minimally impair” workers’ rights and hence that the government’s actions are not “demonstrably justifiable” under section 1.
However, a significant rationale for the Supreme Court’s finding in the Saskatchewan case was the government’s assumption of the power to deem who was an essential service provider and hence who could be banned from striking. A court may be inclined to find the Nova Scotian legislation to be less of an egregious violation of workers’ rights since it applies to workers within one designated field, not to any public employee at the unilateral discretion of the government. Another potentially significant difference between the cases is that in Saskatchewan the government could claim the legislation was necessary for the continued provision of “essential public services,” an objective the government noted was “self-evidently a pressing and substantial objective.” It is unclear if a court would find the Nova Scotian government’s goal of preserving university financial health a similarly “substantial and pressing objective” worthy of potentially justifying rights infringements.
On the whole, it seems that if the Nova Scotian Act was challenged a court would follow the precedent of Saskatchewan Federation of Labour v. Saskatchewan and find the legislation unconstitutional. But before deciding to pursue a case in court, it is important to consider the extent to which the law is subject to judicial interpretation.. Constitutional rights are essentially whatever judges say they are at a given point in time. The Supreme Court of Canada has reversed itself on a number of occasions. The meaning of a right is always filtered through the circumstances of the particular case. Unspoken subtexts, such as how sympathetic the judge is to the right-seeker, seem to shape how courts define workers’ rights.
Labour and Legality
The court system can be a powerful tool. If legislation is found unconstitutional by a court it can be altered or struck down altogether. However, there are serious drawbacks to taking a case to court. The legal system in a liberal capitalist state serves primarily to guarantee individual property rights while promising formal equality to all. As such, it obscures profound inequalities between classes of people, such as workers and employers. Traditionally, Canadian courts prioritize the rights of property owners over those of workers. By using the courts to assert rights, workers are forced to speak a language not their own and pretend the system truly offers equal justice to all.
Court battles can also be an enormous drain on unions’ time and financial resources. Though the unconstitutional Saskatchewan legislation referred to above was passed by the provincial government in 2008, the final court decision was released in January 2015. Even so, the legislation remains legally valid until 2016. If Nova Scotian workers decide to challenge the Act in court it will doubtless absorb years of energy. Stupendous legal fees will swallow precious union resources.
Liberal capitalist states rule through legality. The system of industrial legality established in Canada after World War Two defines what workers’ actions are legitimate and which are illegal. As such, labour law is a system of concessions used to divert the struggles of working people down particular channels. While workers may win tenuous rights by playing the state’s legalistic game, they often sacrifice their own militancy in the process. When workers win legal victories, the right is one bestowed from above, not asserted from below.
Why Would the Government Pass Legislation of Dubious Constitutionality?
The Act must be understood within the broader context of attacks on Nova Scotian workers. Judy and Larry Haiven of Saint Mary’s University calculate that Nova Scotia’s real GDP per capita increased 54% since 1981. This growth was fuelled largely through a 40% increase in productivity. They point out that real median earnings for full-time workers dropped 5% in the same time period. Real average earnings have increased slightly, but only due to gains won by highly skilled unionized workers, such as nurses and university faculty members. Moreover, while between 1991 and 2006 the proportion of the net domestic product enjoyed by Nova Scotian workers declined 8.3%, owners of capital captured 200% of the increased wealth. Skilled, unionized workers are therefore the only group within the Nova Scotian labour market to successfully resist cuts to wages during decades marked by increased productivity and a widening income gap between workers and capital owners.
Since the late 1970s, Nova Scotia’s elites have successfully managed to claw back the labour rights that were won by workers in the postwar decades. The current Liberal government has accelerated the capitalist counterattack. Judy and Larry Haiven argue that the Liberals are targeting skilled public sector workers precisely because they form the last stronghold in a market of declining wages. While nurses were 2014’s public enemy number one, university workers are the target of the latest round of attacks.
The Liberal government thinks it’s a win-win to flout the law. The government believes it can wrap-up its assault on university workers long before the Act is overturned by a court. The Liberals may even be taunting workers with such dubious legislation in the hopes that unions exhaust their resources and energy in a protracted legal battle. The Province can flout the law and get away with it because the legal system tempts workers to play a rigged-game.
Rights and Power
Rights are an abstract concept. People speak of rights both as an expression of what is just or fair, and in the sense of an enforceable legal right that is recognized by the state. Workers’ legally recognized rights are a reflection of their power. It was only due to the strength of workers’ struggles in the nineteenth and twentieth centuries that the state grudgingly recognized workers’ legal rights to unionize and strike. Compulsory collective bargaining legislation only became appealing to the federal government after a wave of wildcat strikes during the Second World War. Workers’ refusal to obey anti-strike legislation made the federal government fear another post-war general strike, like that which occurred in Winnipeg in 1919. As such, the framework for modern Canadian labour law is a direct product of workers’ struggles outside the legal system.
Moreover, while workers’ rights may exist on paper, they only matter when workers have the power to enforce them. It will always be in the interest of capitalist states to legislate workers into submission. It is up to workers to make it politically foolish to do so. Ultimately, workers’ rights are not granted by the Supreme Court of Canada. They derive from our collective power. They are a reflection of our ability to struggle and strike in solidarity with one another.
 Judy and Larry Haiven, “Changing the Face of Labour Law in Nova Scotia,” The Canadian Centre for Policy Alternatives, July 2015.
 Judy and Larry Haiven, “Changing the Face of Labour Law in Nova Scotia,” The Canadian Centre for Policy Alternatives, July 2015.
 For further reading on this topic, see Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948 (Toronto: Oxford University Press, 2001).