12/04/2013 03:29 EST | Updated 02/03/2014 05:59 EST

Saskatchewan tweaks essential services law after court battles, union dissent

REGINA - Saskatchewan is making changes to its controversial essential services legislation after years of court battles and labour dissent.

One of the changes means employers and unions won't have to negotiate a list of essential workers unless they reach an impasse in bargaining. Under the current rule, the two sides have to automatically start negotiating who is essential 90 days before a contract expires.

Labour Minister Don Morgan says the change was a "common sense" suggestion from an advisory committee of employers and union leaders.

"The one I always use is (Saskatchewan Federation of Labour president) Larry Hubich's idea that why should you have to have an essential service agreement before you can start negotiating, why can't you just sit down and make a deal and it made all the sense in the world," Morgan said Wednesday.

"That's what we want to do at the end of the day is have a deal. Why would we put an impediment or a hurdle to that?

"So the common sense thing was negotiate to an impasse, don't put a timeline on that part of it, force everybody to work at the table as much as they possibly can and then go into the (alternative)."

The current essential services law also outraged labour groups because it said that if unions and employers can't agree, then employers can dictate which workers are so needed that they can't walk off the job. Unions could only dispute the numbers of workers designated as essential.

The change will still allow employers to say who is essential if the two sides can't agree.

However, the employers can only do that if a contract has expired, a new deal can't be reached and a strike vote has been taken. Employers can no longer name specific workers, only classifications and the number of positions in each area. Employers will also have to consider whether other workers outside the bargaining unit, such as managers, could do a job before deciding who is essential.

Under the changes, unions can dispute all aspects of the employers' choices, not just the numbers.

"We hope that this is a section of the (Saskatchewan Employment) Act that is not used very often. Our goal is to try and have people freely bargain a good agreement," said Morgan.

"But we know that on areas of essential services, that there has to be an alternate method, so we wanted to make sure that it was balanced, that it wasn't a hammer that could be used by one side or the other."

Saskatchewan Federation of Labour president Larry Hubich says there's definitely improvement, but he's also cautious about the changes.

"We are encouraged that there's been some positive movement in the new legislation that we're going to see," said Hubich.

"But there are also some concerns that are raised, and one of them is that while the government appears to have moved negotiation of an essential services agreement to the back end, they're also expanding the scope of who it applies too."

The change broadens the definition of public employer. It's meant to cover organizations like private ambulance services, which are contracted by some health regions.

Hubich said there are also questions as to whether the legislation is constitutional "even re-written."

The federation, which represents several unions, has been challenging the province's essential services legislation since it was passed in May 2008 by the Saskatchewan Party government.

A Regina Court of Queen's Bench judge ruled in February 2012 that the law was unconstitutional.

Justice Dennis Ball said that "no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly." However, Ball upheld the principle of essential services and gave the government 12 months to fix the law.

The government went to the Saskatchewan Court of Appeal and argued that the lower court's decision broke new ground when it stated there is charter protection for the right to strike.

The Appeal Court agreed with the province. It said the right to strike does not have charter protection.

The federation said in June that it would seek the Supreme Court's opinion. The high court is scheduled to hear arguments May 16, 2014.

Morgan says the changes won't be proclaimed into law until the Supreme Court issues a decision, in case the changes need to be further tweaked. However, changes will be made even if the court uploads the law, he said.

"We're going to change it anyway, regardless," said Morgan.

"The current status quo is that our Bill 5 (essential services legislation) was legal. We're not going to use Bill 5. We went down the road, we did a lot of changes and we consulted with a lot of people on both sides. This is a refined, a better product, more workable for both sides."