Alberta’s new labour laws spawn legal challenge

Bills increase public sector wildcat strike penalties, eliminate binding arbitration
By Sabrina Nanji
|Canadian HR Reporter|Last Updated: 01/28/2014

Key labour players across Canada have their eyes glued to Wild Rose Country, where Alberta has passed controversial legislation that strips government employees of critical bargaining rights.

Two new laws, passed late last year, have sparked an uproar in labour circles.

Under Bill 45, the Public Sector Services Continuation Act, unions that engage in wildcat strikes could be fined up to $1 million per day.

Bill 46 pertains to the current round of collective bargaining between the provincial government and the Alberta Union of Provincial Employees (AUPE), which came to a standstill after contracts expired last March.

The Public Service Salary Restraint Act enables the provincial government to impose an agreement if a deal cannot be reached by Jan. 31, bypassing binding arbitration. Bill 46 also imposes a two-year wage freeze for public sector staff.

The contentious legislation spawned a lawsuit from the union, which represents about 22,000 workers who say the provincial government violated the Charter of Rights.

The legislation is “draconian,” according to Guy Smith, president of AUPE.

“Our only legal recourse was eliminated with the stroke of a pen,” he said. “This is the government being extremely heavy-handed and dictatorial.”

AUPE is currently fighting two battles in the courtroom. The first was filed at the Court of Queen’s Bench and alleges Bill 46 violates the inherent collective bargaining rights of workers.

A bad-faith bargaining complaint was also filed with the province’s labour relations board (both allegations have yet to be proven in court).

“The government has had this legislation in their back pocket for months and had directed their bargaining team to not negotiate at all, knowing we’d reach an impasse and then apply for arbitration, which we think is a fair route,” said Smith.

But the legislative changes correct an antiquated system and keep pace with shifts on the labour horizon, said Thomas Lukaszuk, who heads up the newly formed Ministry of Jobs, Skills, Training and Labour.

He likened previous penalties for illegal strikes to handing out $2 speeding tickets.

“Nobody in this country has a democratic right to strike illegally,” said Lukaszuk.

“Legal strikes for non-essential services, by all means, that’s part of the process. Some of us may agree with the process or not, but it doesn’t matter, it’s a valid tactic. No one has a democratic right to execute illegal strikes, but if you do then there has to obviously be consequences, and they’re dual. There has to be some punitive measures, some deterrent, but you also should be responsible for covering the cost that was incurred as a result.”

Fuelling the motivation for Bills 45 and 46 are wounds from a wildcat strike at Alberta’s jails. Last spring, correctional officers at the Edmonton Remand Centre (represented by AUPE) initiated a wildcat strike, prompting the province to bring in replacement RCMP officers to step in at their posts.

The illegal strike cost taxpayers $9 million and put the workers and the public in danger, said Lukaszuk.

As a result, Bill 46 — a one-time bargaining chip — is intended to get negotiations rolling and put an end to what Lukaszuk called a misuse of binding arbitration.

“Arbitration is a very essential part of this entire process,” he said, adding its function is to ease deadlocked negotiations.

“It is not designed for either the employer or the union to say, ‘No, I’m going for binding arbitration because I think I may get a better deal than actually negotiating with you.’”

But the move has forever soured the bond between the government and its staff, according to the union.

“The relationship with the government is completely fractured,” said Smith.

“We’ve been through some scrapes the last little while. We’ve been an effective voice across the province protesting cuts and privatization, obviously the wildcat strike in the spring at our correctional facilities. Even before all this, the relationship with the government was tenuous, and now it’s been completely destroyed.”

Where does it end?

Perhaps the most chilling notion stemming from both labour laws is that this so-called exit strategy could snowball.

If governments can push legislation through that bypasses key processes when negotiations fail, where will it end?

While that debate is being fought in the courtroom, checks should be put into place to limit illegal strikes, according to Brian Lee Crowley, managing director at the Macdonald Laurier Institute, an Ottawa-based public policy think tank.

A strike can be used as a weapon — especially in the public sector.

“In the private sector, if you’re a unionized autoworker and you go on strike at Ford, there are still going to be cars made by Hyundai and GM and Honda. So unionized employees in the private sector generally don’t have the ability to cause an entire service to be withdrawn,” he said.

“But because most government services are provided only by government — health care, education — if the unionized employees withdraw their service, it’s withdrawn from everybody.”

That effectively makes the public a third party during negotiations. If the public is inconvenienced on a large scale (typical of public sector strikes), the government is under more pressure to settle a deal.

Curbing striking abilities might be the key, but both parties need to be kept in check, according to Crowley.

“The argument is public sector strikes tilt the balance in favour of workers, but you wouldn’t want to let governments set the wages unilaterally,” he said. “You always want there to be some reasonable balance.”

This article was originally published in Canadian Labour Reporter, a weekly newsletter focusing on labour relations including news, collective agreement summaries and arbitration decisions from the editors of Canadian HR Reporter. For more information, or to subscribe, visit www.labour-reporter.com.

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