Keeping Bill 28 in limbo a risky strategy for Pallister

Opinion

Hey there, time traveller!
This article was published 18/01/2019 (2071 days ago), so information in it may no longer be current.

And the plot thickens.

The future of Bill 28 — the proposed law that would impose wage freezes on most provincial civil servants — continues to linger in legal limbo, surrounded by far more questions than answers.

The bill has been passed but not proclaimed by the Progressive Conservative government. Notwithstanding that small but important point, the Tories have continued to impose a wage freeze on civil servants almost by decree, avoiding all meaningful contract negotiations and simply announcing that the wage freeze is very much in place. Meanwhile, a coalition of public-sector unions continues to ready itself for a landmark legal challenge to the bill this November.

And this week, the muddy water surrounding the future of Bill 28 and public-sector wages got a bit muddier.

First, Health Minister Cameron Friesen confirmed to the Free Press that the province’s 3,000 physicians would be subject to a two-year wage freeze as stipulated by Bill 28, followed by a third year at 0.75 per cent and a fourth year at one per cent. The contract between the province and Doctors Manitoba, the bargaining agent, will expire at the end of March.

In one sense, Friesen’s comments were not surprising. Doctors were included as one of the bargaining groups subject to the provisions of Bill 28. Doctors Manitoba voiced its opposition to the wage freeze at committee hearings for the bill.

The more intriguing aspect was the way Friesen delivered the news — as a statement of fact to a journalist. The mode of communication in this instance provided some unique insight into just how determined the PC government is to impose the wage freeze without enabling legislation and completely outside the collective bargaining process.

Proclaimed law or not, and contract talks be damned, the wage freeze is firmly in place.

And then came the judges. Hot on the heels of Friesen’s comments about doctors, the province confirmed it would support a recommendation from the arm’s-length judicial compensation committee (JCC) to increase the salaries of provincial court judges by 1.9 per cent in the first year of a three-year contract. Wage increases in the second and third year would be based on increases in Manitoba’s average weekly earnings.

It was more than a little odd to hear that the government would set aside its policy of wage austerity for the judges. Not because they don’t deserve a raise, but because the government itself argued before the JCC that it wanted judges to be subject to the same wage freeze as other civil servants. The province’s only explanation was to characterize the “vast majority” of JCC recommendations as binding on government.

Even though it’s a pretty obvious point, it shall be made here: to date, this government has not been particularly concerned about respecting the processes that dictate how and when public-sector wages are determined. Basically, the government has refused to bargain with its unionized workers by essentially refusing to negotiate monetary issues in ongoing contract talks. This reveals that this government believes it can impose a wage freeze even without proclaiming a bill that would make it the law of the land.

Somehow, however, the JCC recommendations were binding, at a time when the province’s labour laws are being treated as persistent inconveniences.

Apart from the hypocrisy behind the decision on judges’ salaries, there is increasing mystery surrounding the future of Bill 28 and public-sector wages. In other words, what is the premier’s endgame?

Ask that question to folks involved on both sides of this issue, and you will hear two radically different assessments of the Tory strategy, to date.

Supporters of the government strategy believe the premier is being crazy like a fox on this file. They will point out that Pallister is achieving all of his goals without having to go through the trouble of proclaiming Bill 28 and providing public-sector unions with a bigger target in their efforts to have the law struck down in court.

Supporters will also note that Bill 28 needs to be kept more or less in place — hovering on the edge of becoming law — as a backstop against arbitrated settlements. The bill specifically notes that once proclaimed, it would supersede binding arbitration provisions included in any contract with a unionized group.

This provision is mostly aimed at defending the Pallister government against the use of binding arbitration to settle contracts with public school teachers. The Pembina Trails School Division, with the support of the Manitoba Federation of Labour, has already applied for binding arbitration to settle a contract that expired last June. There are significant fears in the Tory government that if Pembina Trails gets approval for an arbitrated settlement, it would set off a chain reaction that would eventually prompt all other school divisions to follow suit.

In that context, keeping Bill 28 idling in the legislature, ripe for proclamation at any time, seems a prudent course of action.

Critics of the bill and strategy obviously see things in a different light. They see a premier afraid to proclaim a law that he fully expects to be struck down in the courts. By not proclaiming, Pallister may believe he is rendering the legal challenge redundant. They also strongly suspect Pallister is refusing to withdraw the bill because he is unwilling to do anything that would be perceived as a “win” by public-sector unions.

However, there is a chance that by keeping Bill 28 in limbo, Pallister may ultimately be putting his government in an untenable position in the future.

The Court of Queen’s Bench judge hearing the Bill 28 challenge has signalled, to date, that he will hear a case against the bill whether or not it is proclaimed. So it appears now that failure to proclaim the bill will not stop the legal challenge. The province’s arguments in that case could theoretically be weakened by the premier’s refusal to proclaim it.

It also may put the province on the wrong side of labour law.

Right now, the province is brazenly imposing a wage freeze that is neither legally enforced nor negotiated. Sooner or later, the province will have to talk to its unions about a new contract, and when it does, it may find there is a reluctance to just accept a two-year wage freeze as a reality. In other words, the province may only be setting itself up for enormous retroactive wage demands from unions, given that Bill 28 was never proclaimed.

The Pallister government could refuse to negotiate any wage increases. But at some point, that would become an untenable strategy. The Manitoba Labour Board is unlikely to view this form of “civil disobedience” as a legitimate form of bargaining. And it may very well leave the government facing binding arbitration with teachers, a process that could erase some of the fiscal gains being made from the wage restraint.

Pallister has been lucky on Bill 28, getting most of the benefits without some of the headaches. But without some sort of exit strategy, the premier’s luck is going to change in dramatic fashion.

dan.lett@freepress.mb.ca