Friday, February 24, 2012

How will the government respond to a teacher strike?

With teacher bargaining stalled out, I’ve had a couple of queries about the possibility of a province-wide teacher strike when the Alberta Teachers Association (ATA) contracts expire in August. I think we are some distance from any strike (late autumn or early winter would be my guess) and there is lots of opportunity for a negotiated solution.

But an interesting question is what can and will the government do in the face of a strike or lockout in the K-12 system? I assume there will be lots of public hand wringing (“think of the children!”) even though there is basically zero evidence that even prolonged teacher strikes have any educational impact upon students.

But a strike does create a political emergency because many families rely upon schooling for child care. Closing schools quickly becomes disruptive for families and employers. We saw this public pressure play roles in the 2002 (nearly) province-wide strike and the 2007 Parkland County School District strike. So what can the government do?

Well, assuming the government does not broker a deal with some cash, the government’s first option is to delay the strikes and lockouts by imposing Dispute Inquiry Boards (DIBs) under the Labour Relations Code. A DIB gives a mediator 20 days (or more) to see if a deal can be crafted. If not, the DIB report is put before the parties for a vote. DIBs imposed after the strike or lockout has started do NOT suspend the strike or lockout.

The major downside of using DIBs for the government is that, if the parties accept the DIB report, the government will be under pressure to fund the costs associated with the deal because the government imposed the DIB on the dispute. The parties may, in fact, quietly collude to put the government on the hook this way if the DIB report is half reasonable.

The government could also appoint a high profile mediator to try and settle the dispute. Such a voluntary process gives the parties an opportunity to resolve the disputes while saving face. But one or both sides may see an ongoing strike as a useful tool to loosen provincial purse strings. And they may just be too pissed off at each other to consider mediation so this may be a non-starter.

More importantly, parents may see voluntary mediation as an ineffective response by the government. My own experience answering phones for the government during the Parkland dispute is that parents wanted the strike resolved “right bloody now!” (although most supported the teachers). And my impression was that MLAs were pretty worried about the flack they were getting from constituents for not acting decisively.

Moving on, then, the Labour Relations Code allows the government declare the strikes/lockouts constitute public emergencies, end the work stoppages and impose Public Emergency Tribunals (PETs) to sort out the new contract. The government did this in 2002 and got slapped around by the courts pretty badly because it failed to prove there was an emergency that health or property or caused undue hardship. In 2007, the government shied away from this option, in part because it had no capacity to prove undue hardship and little appetite to repeat Lyle Oberg’s public relations mess of 2002.

The government could also pass back-to-work legislation (as it did in 2002) ending the strike and setting out a dispute resolution process and/or set the terms of the dispute. This will be justified as “protecting the interests of students” but might well face a Charter challenge given the recent SCC ruling that the right to strike is protected under s.2(d) as well as by international law. The question will be whether the state can meet the three-part test to demonstrate that back-to-work legislation was a reasonable infringement on worker rights.

The major risk of back-to-work legislation is that a successful appeal could give rise to more case-law that expands the Charter rights of workers and increases the pressure on the government to align Alberta’s employment laws with Canada’s international treaty obligations. The government of Alberta has historically opposed both of these outcomes (those pesky human rights we agreed to…).

Finally, the government could do nothing. This is politically risky as pressure to act will mount as parents are increasingly inconvenienced. And it gives the Wild Rose (which favours taking away teachers’ right to strike) an issue to crow about. Yet there is an upside: the parties are left to sort out the matter and negotiate an agreement that is workable for both sides. Imposed agreements can result in settlements that are difficult to implement and leave long-standing issues to continue to fester. This simply sets the stage for another dispute a few years down the road.

Anyhow, an interesting set of policy choices for the government in the months ahead. Of course, it could just adequately fund the education system and avoid this issue entirely… .

-- Bob Barnetson

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