The Alberta Enterprise Groups’s report making recommendations about reforms in Alberta’s laws proposes eliminating regulations that can force the parties into final and binding arbitration when labour disputes arise. This is a bizarre recommendation and that deserves some unpacking.
Sections 135 and 136
The Labour Relations Code requires that every collective agreement have some means by which to settle disputes about the meaning or implementation of the agreement. If the agreement does not contain such a mechanism, the legislation imposes rights arbitration (i.e., a neutral third party hears the dispute and decides the outcome).
The requirement has its roots in the compromise struck between workers and employers during the second world war: workers agreed not to stop work (i.e., strike) during the term of a collective agreement and, in return, employers agreed to subject disputes to binding arbitration. There were other aspects to this agreement but these are the important dimensions for this discussion.
So let’s say AEG gets its way and the provisions about dispute resolution are struck from the Labour Relations Code. Soon enough an instance will come along where a collective agreement has no dispute resolution provision. There might not be one because the parties have always relied on the statutory provisions. Or an employer will refuse to negotiate one into a new agreement. Or an employer will force one out of an agreement.
Why would an employer do that?
Almost all grievances are filed by workers. This reflects one of the asymmetries of unionized workplaces. Employers interpret and administer the agreement and, if workers object, their unions file grievances.
When there are dispute resolution procedures, workers can have employer decisions that violate the contract overturned via arbitration (assuming the arbitrator agrees with them). If there are no provisions requiring arbitration, the employer then has the opportunity to simply deny the workers’ complaint and suggest the union bargain clearer language in the next round.
AEG vaguely discusses other means of dispute resolution, such as mediation. But without a binding means of dispute resolution, the worker must live with the situation until the next round of bargaining. And it is unclear that the union will choose to negotiate clearer language the next time (there are usually more important issues) and it is unclear the employer would agree to such language.
In effect, AEG is advocating workers can have rights under the contract but no means of remedy if the rights are violated. And, as we all know, rights without remedy for violation are no rights at all.
So what happens then?
Well, workers will likely do what they have always done when faced with a grossly unfair situation. They’ll resist. Some will do it covertly—by not working as hard or perhaps sabotaging or stealing. Others will resist publically—perhaps by quitting. But sooner or later an employer is going to do something egregious that will set a group of workers off. And those workers will put down their tools and stage a (illegal) mid-term strike.
But why should a mid-strike be illegal? The quid pro quo for not engaging in illegal strikes was that there would be some way to remedy violations of the contract. If AEG wants to get rid of mandatory rights arbitration, then the ban on mid-term strikes should go too.
Yet that isn’t in AEG’s proposals.
The reason this is missing from AEG’s proposal is because employers need the ban on mid-term strikes. Workers putting down their tools is a very effective weapon. A wildcat strike can seriously damage a company, especially in a just-in-time economy. And employers who have production process that cannot be easily (or even safely) stopped quickly would be incredibly vulnerable to threats of job action. There is lots of stuff that could go boom in Alberta if workers just walked away.
What does this tell us?
At a most basic level, this tells us that AEG’s proposals are not designed to create “balance” in the labour relations environment (as AEG purports). Rather, these proposals are designed to tip the balance in favour of employers by eliminating basic rights. And they do so by eliminating a statutory requirement that ensures that workers have a remedy when employers violate the contract. The more one reads, the more politically craven AEGs report appears.
Up next: Successor employer provisions and conclusions
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