By Mariam Ibrahim, Communications Staff
Bill 4 restores bargaining rights for most AUPE members
After years of lobbying and more recent legal wrangling, the Alberta government has finally brought its antiquated labour laws into the 21st Century by restoring the right to strike to more than 150,000 public sector workers across the province, including the majority of AUPE members.
The move sets Alberta into uncharted territory, as many unionized public sector workers begin to grapple with the changes the law will mean for their collective bargaining process after being banned from legally striking for decades.
That blanket prohibition in Alberta, enacted through both the province’s Labour Code and the Public Service Employee Relations Act, applied to the vast majority of AUPE members.
It meant in those rare cases when members were forced to go on strike for better working conditions, the union was slapped with heavy-handed fines and faced the threat of potential criminal penalties.
But all that will soon change, in a drastic way, with the passage this spring of the Alberta government’s new Bill 4 – An Act to Implement A Supreme Court Ruling Governing Essential Services.
As the law’s unwieldy name implies, the government didn’t get here alone.
In 2008, the Saskatchewan government gave itself the power to determine which public sector workers could go on strike during a bargaining dispute, allowing it to label large swaths of public sector roles as essential.
The move effectively limited public sector workers’ right to strike and severely impacted their collective bargaining rights. The Saskatchewan Federation of Labour decided to act, and together with other public sector unions, challenged the government’s unjust law in court, arguing it violated the Charter of Rights and Freedoms.
The unions went on to win that case, but it was soon overturned on appeal. The stage was set for a fight at the Supreme Court.
In January 2015, the highest court in Canada agreed 5-2 with the arguments made by the unions, including AUPE. The Supreme Court ruled the Saskatchewan law violated the right to freedom of association guaranteed under the Charter, fundamentally protecting the right to strike as a natural and necessary extension of collective bargaining rights.
“Along with their right to associate, speak through a bargaining representative of their choice, and bargain collectively with their employer through that representative, the right of employees to strike is vital to protecting the meaningful process of collective bargaining,” Justice Rosalie Abella wrote in the decision for the majority.
The decision – a departure from Supreme Court rulings in the past – made waves across Canada. The country’s labour relations landscape was about to be drastically altered, as workers long denied their rights would soon have new options before them. In some provinces, like Alberta, whole laws had to be rewritten.
A few months later, after AUPE challenged Alberta’s laws directly, the Alberta Court of Queen’s Bench issued a similar ruling, overturning the blanket ban for public sector workers, and opening the door for legal strikes and lockouts.
The Alberta government – and its outdated labour laws – had been put on notice.
“The courts granted a long-overdue victory to public sector workers in Alberta. As AUPE has time and again made clear, a level playing field means a better collective bargaining process for both parties at the table,” says President Guy Smith.
“It gives both parties more reason to come to a fair and just agreement at the table, so a strike or lockout can be avoided.”
While many AUPE members, namely those working for private corporations, have already enjoyed the right to strike in Alberta, the new Bill 4 restores that right for approximately 78,000 AUPE members.
It applies to all unionized government of Alberta employees and employees of agencies, boards and commissions, along with non-academic staff at post-secondary institutions. It also covers employees of Alberta Health Services and those employed by sites considered “approved hospitals” under the law.
While the courts restored the right to strike for so many workers, they also recognized that some public sector roles must be considered essential services, so that both safety and rule of law are maintained in a strike or lockout.
While Bill 4 ensures that essential public services will remain intact if a labour dispute gives way to a strike or lockout, it doesn’t determine precisely which roles are essential.
Who decides which roles are essential and just how many services are required to maintain safety and the rule of law? As the Supreme Court case made clear, the question is an important one and can’t be decided by a government unilaterally.
Instead, the law leaves that question up to the employers and unions to negotiate through a document called an Essential Services Agreement (ESA).
The ESA is negotiated during the collective bargaining process, and must be in place before negotiations reach an impasse. It sets out which roles within a bargaining unit are considered essential. Workers assigned to those roles could find themselves on the job for a portion or the duration of a strike or lockout.
The agreement has to be negotiated before a strike or lockout can happen and once an agreement is in place it ensures the employer can’t bring in scabs – replacement workers – to cross the picket line and render a strike ineffective.
In some cases, though, parties could apply for an exemption from the ESA – particularly for bargaining units that include no essential service roles, as defined by the Act.
The specifics of each agreement, and whether an exemption could apply, will be left in the hands of labour relations experts and the bargaining committees as they begin to chart new labour relations territory across the province.
But one thing the courts made clear is that labelling a work role as essential must be done carefully, as it takes away a worker’s right to strike. That’s why an ESA can’t include so many roles that a strike by the bargaining unit would be rendered pointless. If that happens, and if the services designated are essential, the contract would be sent to binding arbitration.
Under the law, mediators called Umpires will help parties negotiate an ESA if they reach an impasse. And with all the changes, a new role called the Essential Services Commissioner has been created to help oversee these issues.
The Alberta government recently appointed Edmonton-based labour lawyer Gwen Gray to the role, effective June 1, 2016. Gray’s experience spans three decades, during which time she taught law at the University of Alberta, chaired the Saskatchewan Labour Relations Board and, more recently, sat as a member of the Alberta Human Rights Commission.
With all the impending changes, and a clear indication that collective bargaining in Alberta is about to change in a big way, AUPE has brought on additional resources to help navigate the new ground.
“AUPE is committed to staying ahead of all the changes so our members can stay fully informed about what this new law means for them, and their next round of collective bargaining,” says Vice-President Mike Dempsey.
Union representatives have also met with public sector unions from across Canada to learn how right to strike/essential services legislation in other provinces has affected collective bargaining where various laws have long been in place.