Athabasca University violates statutory freeze period

Canadian labour laws contain statutory freeze periods, during which employers are prohibited from changing the terms and conditions of employment. For example, employers cannot increase or decrease wages during union certification drives because doing so would destabilize and undermine employee support for the union (and thereby interfere with employee choice).

Employers are also typically enjoined from altering terms of employment during period of collective bargaining because doing so could act as an inducement to the union members and thereby undermine the union's bargaining power.

For example, Section 147(3) of Alberta’s Labour Relations Code states:

147(3) If a notice to commence collective bargaining has been served pursuant to section 59(2), no employer affected by the notice shall, except 

(a) in accordance with an established custom or practice of the employer,
(b) with the consent of the bargaining agent, or
(c) in accordance with a collective agreement in effect with respect to the bargaining agent, 

alter the rates of pay, a term or condition of employment or a right or privilege of any employee represented by the bargaining agent or of the bargaining agent itself until the right of the bargaining agent to represent the employees is terminated or a strike or lockout commences under Division 13.

Given this prohibition, I was surprised to receive an email from Athabasca University’s Director Human Resources (Charlene Polege) on December 20th that read (in part):

With only a handful of days remaining in 2018 as we look forward to enjoying the best of season with friends and family, on behalf of the Executive Team, I wanted to take a moment to thank you for your collective contributions to what has been an exciting and rewarding year for the oneAU community. 

In recognition of these efforts, the University will “officially” close for the holiday season at noon on Monday, December 24th and reopen on January 2nd.

Previously, AU was to remain open until 4:30 pm on December 24. With this email, AU’s executive essentially gave all employees an additional half day of vacation time on December 24.

This change (however welcomed) alters the terms and conditions of employment and clearly violates s.147(3) of the Code given that AU and the Athabasca University Faculty Association (AUFA) are engaged in collective bargaining. (AU did not meet any of the exceptions to the freeze).

AU could have gotten the permission of AUFA for the change (e.g., during the labour-management meeting that occurred only a week before the announcement). I expect AUFA would have agreed since the extra time off would have been appreciated.

The reason this seemingly minor violation of the Labour Relations Code matters is because it is further evidence that suggests the university is engaged in a union-rejection strategy. A union-rejection strategy typically entails trying to undermine the union with its members in various ways.

This can include impeding union access to members, refusing to meet with the union, routinely violating the contract and delaying dispute resolution, and forcing the union into a strike (all of which are occurring at Athabasca University).In this context, offering union members a non-contractual inducement (such as extra time off) is just another tactic by which AU undermines the union.

It is, of course, also possible that AU’s HR shop is just incompetent and doesn’t understand how labor law works. But, given the pattern of behaviour, it seems more likely that this violation of s.147(3) was intentional.

This raises two questions: (1) will AU’s Board of Governors take action to reign in AU’s senior executive’s union-rejection strategy before it leads to a damaging strike, and (2), if not, will the government move to stop an unnecessary conflict?

-- Bob Barnetson