Update released by Federal Government Dockyard Trades and Labour Council, Esquimalt, BC
Our constitutional challenge to the Expenditure Restraint Act was heard on April 26- 29, and May 2 in British Columbia Supreme Court before the Justice David Harris. Our counsel, Catherine Boies Parker, argued that the legislation is a breach of freedom of association protected under s. 2(d) of the Canadian Charter of Rights and Freedoms.
Relying on the Health Services case, in which the Supreme Court of Canada struck down legislation which voided the collective agreements of British Columbia health care workers, we argued that voiding the arbitration award and taking compensation off the table for five years constituted a substantial interference with our ability to engage in meaningful collective bargaining, protected by the Charter. We said that while we did not challenge the wage restraint legislation on a going forward basis, reaching back to eliminate the wage adjustment payable as of October 1, 2006 was an unusually intrusive and unjustifiable infringement of our rights.
The government argued that there was no breach of freedom of association and that, even if there was a breach, it was justified under section 1 of the Charter. Section 1 provides that rights can be limited by restrictions which are demonstrably justified in a free and democratic society. The government argued that the global economic uncertainty which Canada faced at the time the legislation was enacted justified the curtailment of our rights. They argued that the court should be deferential to the government’s response to a complex economic problem and not second guess the government on its choice of fiscal policies.
In response, we argued that even if wage restraint might generally be justified in these circumstances, the particularly severe impact on our members was not justified, given that the award related to a period before any global economic problem had developed, and that collective agreements and arbitral awards issued prior to December 8, 2008 were allowed to stand.
The decision of the Supreme Court of Canada in the Fraser case was delivered while our case was being heard. In Fraser, the Court held that the Health Services case did not require that farm workers in Ontario be provided with all of the statutory protections for collective bargaining that the Labour Relations Act provides to other workers in that province. However, it did confirm that s.2(d) protects against interference with significant terms of negotiated agreements coupled with the elimination of the ability to negotiate those terms into the future. We therefore argued that it further supported our claim. The government was not able to provide its own response to the Fraser case to the court, and will be making some further submissions on that one case. If we think it is necessary to reply to those further submissions, we will be given a chance to do so.
It is not known when the decision in our case will be rendered, but we will keep you updated in that regard. We are advised by our counsel that it can often take 6 months to obtain a ruling and even longer periods of awaiting judgement are not unusual. Once the judge decides if there has been breach of our constitutional rights, we will appear before him again to argue the question of remedy. We will be arguing that we should receive the entire benefit of the wage adjustment, going back to October 1, 2006. It is not yet known what the government’s position on remedy will be.
There were many members present during the proceedings, both current and retired. I would like to thank all who attended for their support; it was greatly appreciated by both the executive and the legal team. Please share your views of the proceedings with your co-workers.
Ms. Boies Parker did an exemplary job of presenting our case, you can be assured that the very best submission possible was made to the court on behalf of the membership.
“original signed by”
President FGDTLC (W)