Tuesday, April 18, 2017

Should Alberta protected concerted activity?

Today is the deadline for submissions regarding Alberta's Labour Relations Code review. Much of the chatter to date has focused on card-check certification, double-breasting, and first-contract arbitration.

I've appended below my submission. I chose to focus on the absence of concerted activity protections in Alberta's Labour Relations Code. The argument that I've advanced is that Alberta workers currently face profound impediments to exercising their associational rights and, give the direction of the Supreme Court's recent decisions on freedom of association, this creates an obligation on Alberta to statutorily protect concerted activity.

-- Bob Barnetson

Dear Mr. Sims,

Thank you for the opportunity to make a submission regarding changes to the Labour Relations Code.

I would like to propose remedying the lack protection in the Labour Relations Code for concerted activity. Presently, workers who exercise their Section 2(d) associational rights for any legitimate labour-relations purposes other than organizing or administering a trade union have no protection against or recourse in the case of employer retaliation.

By contrast, Section 7 of the US National Labour Relations Act (NLRA) protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection”. Examples of such activity include the recent Fight for 15 campaigns, efforts to improve working conditions in non-unionized workplaces, collective whistleblowing activity, and work refusals that fall outside of the ambit of health and safety legislation.

This gap in Alberta’s Labour Relations Code fundamentally undermines workers’ ability to meaningfully exercise their associational rights. This, in turn, obligates Alberta to take affirmative action to facilitate the exercise of these rights.

In support of this assertion, I would point to the recent trend in Supreme Court of Canada decisions is to view associational rights in increasingly expansive terms. As recently noted by Ritu Khullar and Vanessa Cosco (2016), in Mounted Police, the Court found that “a key purpose of section 2(d) is to protect the ability of individuals to join with others to meet, on more equal terms, the power and strength of other groups or entities” (p. 30).

This view has been informed by Chief Justice Dickson’s 1987 dissent in Alberta Reference, wherein he asserted the
[87] Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association …has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict. … 
[88] What freedom of association seeks to protect is not association activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage.
Note that Chief Justice Dickson’s focus was on the relationship between marginalized individuals and the powerful (rather than simply the relationship between individuals and the state). The Court, in Mounted Police, adopted this focus when it stated:

[66] In summary, s. 2(d), viewed purposively, protects three classes of activities: … (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.

In Dunmore, the Court noted that the state can be obligated to take affirmative action in order to protect or facilitate the exercise of fundamental freedoms. In Fraser, the Court stated that circumstances where it is impossible to meaningfully exercise a freedom would be a violation of the Charter.

I would put to you that, in contemporary Alberta, non-unionized employees are in a situation where, if they exercise their associational rights, their employer can terminate or otherwise detrimentally manipulate (through scheduling changes and temporary layoffs) their employment.

This dynamic places non-unionized employees in a position where they cannot collectively and meaningfully exercise their associational rights except by forming or joining a union and certifying their workplace. Given that the unionization rate in Alberta is approximately 20% (the lowest in Canada), unionization is clearly not a realistic option for most workers.

Based on Dunmore, the absence of a meaningful way for workers to exercise their associational rights creates an obligation on Alberta to take affirmative action to facilitate this exercise. Introducing concerted activity protections to the Labour Relations Code would be an appropriate way to facilitate and protect the exercise of non-unionized workers’ associational rights.

Thank you for the opportunity to make this submission.

Dr. Bob Barnetson
Professor, Labour Relations
Athabasca University

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