The provincial government's wage-freeze legislation stymied salary bargaining between University of Manitoba administration and the union representing some professors in 2017 — despite the fact the bill has, to date, not been proclaimed into law, the union's former president testified in court Tuesday.

Mark Hudson, former president of the University of Manitoba Faculty Association, told court university officials took salary negotiations off the table in bargaining that year and quoted from Bill 28 — the Public Services Sustainability Act — in conversations in 2017.

The faculty association is among the 28 unions, along with the Manitoba Federation of Labour, fighting the bill in a Court of Queen's Bench trial which started Monday.

Manitoba lawmakers passed Bill 28 in 2017, but it has never been proclaimed. That means it's technically not in effect, but the unions argue it has still had an impact on negotiations.

"There's some trust issues, obviously, with the university. Are we actually bargaining with the university administration, or are they having conversations that we don't know with government?" Hudson said in the Winnipeg courtroom Tuesday.

"You want to go into a round of collective bargaining with the assumption that this is free and fair bargaining. And we have a hard time assuring ourselves that that's the case."

Bill 28 mandates a two-year wage freeze for public-sector workers as each new collective agreement is negotiated. That would be followed by a 0.75 per cent pay increase in the third year and one per cent in the fourth.

The bill says any salary increases exceeding those levels negotiated between the time when it was passed and when it is proclaimed would be owed by employees to their employer retroactively.

The unions are also arguing the province violated Charter-protected rights to collective bargaining when it directed the University of Manitoba to freeze professors' wages in 2016.

On Tuesday, Hudson told court that directive came in the midst of mediation, days before a strike deadline, and made it "next to impossible" to avoid that job action. The late 2016 strike ended with UMFA members accepting a one-year agreement.

Garth Smorang, a lawyer representing the unions, told court an agreed statement of facts showed the mediator flown in for the meetings remarked he "would not even have got on the airplane" if he'd known salary wasn't up for negotiation.

U of M actions found unfair

On Monday, Justice Joan McKelvey heard opening statements from government lawyer Heather Leonoff.

Leonoff called the matter a "one-issue case," centring on the question of Bill 28's constitutionality. She argued discussion of the bill is "entirely hypothetical," since it hasn't been proclaimed or taken effect.

She added that wage mandates aren't unusual in bargaining.

The Manitoba Labour Board has already ruled the University of Manitoba engaged in unfair labour practice at the direction of the provincial government during the 2016 faculty strike.

The school has since apologized and paid a fine of $2,000 to each of the roughly 1,200 members of the faculty association.

A U of M spokesperson said in an email Tuesday the school wouldn't comment on the matter since it's before the courts.

In his testimony Tuesday, Hudson told court the faculty association wants the province to admit it violated the Charter of Rights and Freedoms and pay damages in the amount of wages lost in the freeze.

The province has said it won't comment on the matter while it's before the courts either, but has said it's confident in the constitutionality of the bill.

The unions will be in court until Dec. 5, and then again in February for three days to make their case.

The trial resumes Wednesday.