Federal precedent proves province’s wage-freeze law constitutional, Manitoba lawyer argues

The Manitoba government’s demand for a wage freeze from public sector workers wasn’t unconstitutional, a provincial lawyer argued at an appeal hearing Wednesday, pointing to a federal precedent to support her case.

Government lawyer Heather Leonoff said the federal government yanked a promised raise for RCMP members more than a decade ago — a move that was upheld by the Supreme Court of Canada. 

Leonoff made her argument Wednesday at a Manitoba Court of Appeal hearing on a 2020 Court of Queen’s Bench decision that struck down Bill 28. The province’s controversial legislation, introduced in 2017, called for a two-year wage freeze for public sector workers, followed by a 0.75 per cent pay increase in the third year and one per cent in the fourth.

Queen’s Bench Justice Joan McKelvey called the legislation “a draconian measure that has inhibited and dramatically reduced the unions’ bargaining power and violates associational rights.”

She ruled the government’s approach violated the Charter of Rights and Freedoms, which resulted in “substantial interference” that inhibited the union’s ability to trade off monetary benefits for other improvements. 

Leonoff argued Wednesday, though, that Justice McKelvey erred by failing to respect wage restraint legislation in Manitoba, since the Supreme Court deemed the federal government’s rollback of wages of RCMP members following the economic downturn of 2008 to be acceptable and constitutional.

“I will say, at the end of the day, if removing wages [from negotiations] was acceptable with the federal civil service, removing wages is acceptable in the Manitoba civil service,” she said.

The Ottawa example demonstrates that “broad-based, time-limited wage restraint legislation” is constitutional, and unions can still negotiate a “meaningful impact” in their workplace, she said.

A lawyer representing the unions that opposed the legislation told the court RCMP members were still receiving pay increases under Ottawa’s rollback, albeit at a smaller rate that put them in line with other public servants.

In Manitoba, the legislation would have resulted in wages lower than what public servants were getting before Bill 28.

The legislation was never officially proclaimed into law and thus never technically came into effect — but public sector unions say government negotiators acted as though it was. The law would have applied retroactively if it had been proclaimed.

In an effort to rein in spending, the Manitoba government introduced legislation in 2017 that would subject 100,000 public sector workers, including these nurses protesting in 2019, to stagnant wages for two years. (Ian Froese/CBC)

Premier Brian Pallister’s Progressive Conservative government, which has focused on reining in government spending, said the appeal was necessary to provide clarity on what governments can do to control costs.

Shannon Carson, a lawyer representing the public sector unions, argued the government’s actions severely impacted the collective bargaining process, which is a violation of the Charter of Rights and Freedoms.

A number of unions in Manitoba agreed to wage freezes in 2010, in response to an economic downturn, because they got something in return, such as improved benefit packages and no layoffs, Carson said.

Bill 28, however, stripped unions of virtually all their leverage, she argued. Some of the unions that reached deals after Bill 28 were left with members questioning the purpose of paying union dues, since they got few perks in exchange for stagnant wages, she said.

“Union negotiators were aware at the bargaining table that not being able to negotiate money, they were going to have a hard time being able to find tradeoffs, even in non-monetary issues.”

Chief Justice Richard Chartier reserved his decision to a later date, and expects to complete it within six months. He commended both sides at the end of the hearing for their “top-notch advocacy.”