Arbitrator, and NAA member James C. Oakley Q.C. summarizes an article in The Chronicle Herald (Halifax) involving recent legislation in Nova Scotia. See Nova Scotia government imposes wage package on 75,000 civil servants.
The Government of the Province of Nova Scotia has legislated wage increase limits on its civil servants. In the event that a collective bargaining dispute with civil service unions is referred to interest arbitration, the interest arbitrators will be limited to maximum wage increases of 3 per cent over four years. The legislation also imposes restrictions on the award by arbitrators of other specific collective bargaining issues.
The Court of Appeal of Nova Scotia will be asked by the Government to give its opinion on the constitutionality of the new legislation. The Supreme Court of Canada has previously ruled that legislation must not violate the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights by failing to protect the capacity of union members to engage in collective bargaining on fundamental workplace issues, see Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (CanLII). In the recent trilogy of cases, including Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4 (CanLII) the Supreme Court of Canada stated that the right to strike is protected by virtue of its unique role in the collective bargaining process. If there are restrictions on the right to strike, there must be a meaningful dispute resolution mechanism to resolve bargaining impasse, such as arbitration.
At issue in the Nova Scotia court reference is whether the imposition of maximum salary increases above which the union is prohibited from bargaining, or above which an arbitrator is not permitted to award in an arbitration award, violates the guarantee of freedom of association in the Charter of Rights.
Regardless of the decision by the Nova Scotia Court of Appeal, the issue may ultimately need to be decided by the Supreme Court of Canada.