Thursday, November 28, 2013

Initial thoughts on Bill 45

I have been reading Bill 45, which proposes significant new sanctions for illegal public sector strikes. There are many concerning (and frankly chilling) aspects of this Bill.

Here is an example (made up off the top of my head as I read the Bill) that affects all Albertans (not just public sector union members).

Section 4(4) of the Bill says:
(4) No person shall counsel a person to contravene subsection (1) or (2) or impede or prevent a person from refusing to contravene subsection (1) or (2).
Sections 4(1) and (2) are basically prohibitions on illegal strikes or threats of strikes:
4(1) No employee and no trade union or officer or representative of a trade union shall cause or consent to a strike.
 (2) No employee and no officer or representative of a trade union shall engage in or continue to engage in any conduct that constitutes a strike threat or a strike.
Strike and strike threat are pretty broadly defined in ss.1(1)(j) and (k) of the Bill. I won’t list all of the possible definitions here (you can read Bill 45 yourself). The key issue here is that if someone uninvolved with a union (say a newspaper editor or an academic) says “The workers’ only recourse is an illegal strike” that could well be construed as counseling workers or trade unionists to violate ss.4(1-2), which is a violation of s.4(4).

So what happens to the editor or academic? Well, s.18(1) says that if you violate s.4(4) you are guilty of an offence. Under s.18(1)(d), the editor or academic would be liable for a fine of $500 a day per day of the contravention. Section 20(a) says that prosecution may occur within 1 year of the last day the offense occurred.

So riddle me this.

If Bill 45 had been the law before the jail-guard strike went down this spring and I made a blog post (primarily aimed at students) that suggested the guards had no choice but to strike since the employer would not address the health and safety issues at the (then) new remand centre (which is a reasonable conclusion to draw) and the employees illegally struck and I left the post up, I would remain open to prosecution for an offense indefinitely for a fine of $500 a day?

Setting aside the absurdity of the timelines, the basic offense (expressing an opinion) is protected behaviour under s.2 of the Charter and s.4(4) (or perhaps 18(1)(d)) is unlikely to be saved because it is an unreasonable violation of my freedom of speech. Of course, I'd have to challenge that in court and the government would likely drag it out to the Supreme Court (using my tax dollars against me while forcing me to fund the cost of my appeal!).

More broadly, many provisions of the Bill violate Charter-protected freedoms of speech and association. Further, some sections of the Bill make the Minister in charge effectively judge, jury and executioner. For example, s.16(1) allows the Minister to fine a civil servant a days wages for making an offhanded comment on twitter or in the coffee room that “Well, I’m not gonna work that hard of they are gonna treat me this badly”, which constitutes a strike threat under ss.1(1)(k)(iv) and 1(1)(j)(iv)!

The definition of strike threat (s.1(1)(k)) basically allows the government to complain to the Alberta Labour Relations Board (s.5(1)) about behaviour that has not happened (“but they’re talking about a strike…”) and the Board could direct the union officials to stop discussing things. Um, hello, freedom of speech?

And s.6(1) would then allow the employer (who is also the government) to suspend dues collection for three months plus one additional month for each day the chit-chat continues! The government could also apply to the courts to impose punishing ($1million a day!) fines on unions under s.9(1) “abatement orders”

A quick read of this Bill reveals it to be outrageously heavy-handed and likely not compliant with the Charter. So what then is its purpose?

Well, some of it is payback for the spring jail-guard strike that embarrassed the government and, more specifically, the Deputy Premier.

And some of it is designed to limit AUPE’s ability to resist Bill 46 (which displaces collective bargaining by legislating the employer’s settlement).

And some it is just plain mean and arrogant.

Of course, since the Tories are going to ram it through in two days, none of this will be debated.


-- Bob Barnetson

1 comment:

  1. This legislation to me, is now proof, in my mind, that this government is actually, running on panic mode, this is a very confused group of people, now trying to silence the people of Alberta. This is by far the richest, and most stable economy on the planet, but we are cutting funding in Education, Health Care, Infrastructure, and yet this group now informs us we are running a Surplus in this quarter, if this is the case, why are they trying to muzzle the people of Alberta. Alberta paid off their debt, that had to put us in the envious position, and the Financial Crisis was oblivious to this Province, so why are we in Dire Straits trying to silence groups trying to go forward, and make this economy work.