Research: Government interference in collective bargaining

Earlier this week, the Parkland Institute released a report that I contributed to, entitled Thumb on the scale: Alberta government interference in public-sector bargaining.

This report examines how, in a time when workers’ Charter-protected associational rights appear to be expanding, the rate at which governments interfere with collective bargaining has skyrocketed.

It specifically looks at Alberta’s ongoing use of secret bargaining mandates, which turn public-sector bargaining into a hollow and fettered process.

This report is relevant because both UNA and AUPE have exchanged opening proposals with the government in the last few weeks and will be bargaining against secret mandates. The government opener in both cases was, unsurprisingly, identical and there is a huge gap between what workers are asking for and what the government is offering.

-- Bob Barnetson

Bill 5 continues government interference in collective bargaining

Canada has a long tradition of governments using their power as legislators to give themselves a further advantage in their role as an employer. This is called permanent exceptionalism. Basically, governments pass laws undermining public-sector workers’ bargaining power, justifying them as temporary and exceptional interventions, except they are neither.

My colleagues Jason Foster and Susan Cake and I published a study of legislative interventions in labour relations from 2000 to 2020 in a recent issue of the Canadian Labour & Employment Law Journal (vol 25, issue 1) called “Catch me if you can”: Changing forms of permanent exceptionalism in response to Charter jurisprudence.”

The upshot is that, during a time when the Supreme Court was finding that workers’ associational rights in the Charter included the right to collectively bargain and strike free from substantial interference, the rate of government interference significantly increased (tripling over the 1990s). Basically, governments have become addicted to rigging the game against public-sector workers.

Back in 2019, Alberta’s UCP government passed the Public Sector Employers Act. The PSEA allowed the government to give public-sector employers secret and binding bargaining mandates. This made the 2020 round of public-sector bargaining a hollow and fettered process (our study about this is currently in review) and let the government drive home a combination of wage freezes, miserly wage increases, and other rollbacks. This built upon a similar strategy use by the NDP government in the 2017 round of bargaining that also delivered several years of wage freezes.

Presently, the legislature is debating Bill 5, which amends the PSEA. The headlines around this Act have focused on how the government will be better able to attract certain types of public-sector workers (i.e., wages are too low) while also now controlling the wages for non-unionized workers via secret bargaining directives. In the house, the NDP is flagging how Bill 5 opens the door to pork-barrelling for public-sector CEOs.

Almost no one is examining how Bill 5 extends the original secret mandate powers. The new bill allows the government to create employer committees and associations to coordinate (and perhaps perform) bargaining, potentially on sector-wide bases. This is pretty much how it works at the big tables in education, health-care, and the core civil service now.

But, for the 250-odd bargaining tables among agencies, boards, and commissions, these amendments would allow for big changes. In theory, employers could bargain cooperatively against dozens and dozens of disparate small unions and union locals, each bargaining on their own. Combined with an inflexible government mandate, this would make it very hard for these workers to get a decent deal and would make it much easier for the government (via these employers) to drive further concessions into these contracts. There are no similar provisions for sectoral bargaining arrangements for workers.

Alberta is already suffering from significant staffing shortages in health-care and education. Further grinding wages and hollowing out of public sector-bargaining (combined with the government threatening to take control of Albertan’s Canada Pension Plan contributions and its efforts to grab up public-sector pensions) will make Alberta an unattractive place for new graduates to stay.

-- Bob Barnetson

Reflections on Unifor's strategy during Regina's Refinery strike

Andrew Stevens and Doug Nesbitt recently published an article entitled “Refinery town in the petrostate: organized labour confronts the oil patch in Western Canada" (this article does not yet appear to be open access). This piece examines the lengthy strike and lockout at the Co-op refinery in Regina in 2019 and explores three main themes.

First, it examines how the union’s long-term approach to bargaining (which the authors term conciliatory and cooperative) left the union unprepared to cope with an aggressive employer intent upon driving major concessions into the union’s agreement (this is likely an important finding or many unions…). This included taking significant steps (e.g., building a camp to house a scab workforce) to ensure that a lockout of workers would be successful.

Second, it explores how the state and employers colluded to limit the union’s ability to effectively apply pressure on the employer through traditional and legal means (e.g., striking, picketing) through court injunctions and demands that workers’ picketing behaviour be treated as criminal. Allied employers also began demanding further legal constraint of picketing activity.

Third, the paper examines the effectiveness of civil disobedience and building solidarity networks to apply pressure to the employer in the face of collusion between the state and the employer and profound anti-union sentiment. The state’s response to union tactics that infringed upon the employer’s property rights included imprisoning union leaders and demonizing the union as an outsider. Of particular interest in the article is the analysis of how community support for the oil and gas industry benefitted the employer’s efforts to grind the compensation of workers.

The authors suggest that a more thoughtful approach to community engagement an the deployment of civil disobedience tactics by the union might shift the terrain of future disputes and increase the union’s leverage.

-- Bob Barnetson

Podcast: Vriend 25 Years On

The Well Endowed Podcast is publishing a series on the 25th Anniversary of the Vriend decision. While sexual orientation had been deemed an analogous ground under s.15 of the Charter, Alberta had refused to include sexual orientation as a prohibited ground in its human rights legislation. This permitted discrimination on the basis of sexual orientation by private actors. In Vriend, the Supreme Court found that this exclusion offended the Charter and should be read into human rights legislation.

Vriend was ground-breaking litigation and this multi-part podcast begins by examining how Canada and Alberta treated members of the LGBTQ2+ community in the decades leading up to 1991 (when Vriend was fire by an Alberta college because of his sexual orientation). The degree of discrimination faced by the LGBTQ2+ detailed in the first episode is, frankly, shocking.

This decision has had significant impacts for labour relations, including the Charter, human rights, immigration, and sex work.

-- Bob Barnetson

Does SFL limit the state's ability to order workers back to work?

The fall 2020 issue of Labour/Le Travail had an interesting essay entitled “Free to strike? What freedom to strike? Back-to-work legislation and the freedom to strike in historical and legal perspective.” This essay by Eric Tucker was one of four in the volume that examines back-to-work legislation.

I’ve never regretted the time I’ve spent reading a piece by Tucker and this was no exception. The essay starts out examining the three strands of the framework that regulate workers’ freedom to strike. These strands include:

• The liberal order’s foundational commitment to individualism which does not recognize the validity of collective activity (unless the wealthy do it in the form of a corporation). Collective actions, such as strikes, were (usually) suppressed by the state, although this repression was inconsistent and, eventually, a right to strike was recognized.
• The post-war Wagner Act Model (WAM) narrowed the opportunity for workers to engage in legal strikes a spart of a broader strategy of minimally accommodating workers’ demands while containing the power of putting down one’s tools. 
• Essential services restrictions were a late addition as the state extended WAM to public services, with strikes either being limited or replaced with binding arbitration. 

Beginning the mid-1970s, governments began actively intervening in labour disputes through back-to-work (BTW) legislation. The majority of Tucker’s piece examines how the constitutionalizing of the right to strike in the Saskatchewan Federation of Labour case in 2015 may affect the state’s ability to legislate workers back to work.

The upshot of Tucker’s analysis (which is really worth a read) is that BTW legislation is probably a Charter violation but may be saved under Section 1 so long as the BTW legislation minimally impairs the affected right. This, argues Tucker, will likely require an alternative dispute resolution process. In effect, carefully written BTW legislation, absent the punitive measures found in Harper-era laws, will likely be found constitutional.

This analysis suggests that a constitutional right to strike has limited practical utility because it is enmeshed in a legal regime that profoundly constrains the right to strike and gives government the ability to end strikes so long as they provide a reasonable alternative way to settle the dispute. A question this raises is how long will workers continue to participate in such a system?

-- Bob Barnetson

On the absence of concerted-activity protections in Alberta

There was an interesting post the other day about how workers in a US restaurant took direct and collective action to protect their health and safety when confronted with (1) unsafe temperatures and (2) a potentially lethal carbon mono-oxide leak.

In both cases, the workers walked off the job until the employer addressed the problems. This forced the employer to rectify the problems, something the employer had initially declined to do.

This concerted activity is protected in the US by Section 7 of the National Labour Relations Act. The highly mobilized workforce in this diner also created a degree of protection for such collective acts of resistance. There are no similarly broad concerted activity protections in Alberta’s labour laws.

Instead, Alberta workers could refuse unsafe work (a right under the OHS Act and for which retaliation is officially precluded). If the employer failed to remedy the problem, it would eventually be escalated to an OHS officer. The officer might or might not agree with the workers’ concerns and, if so, might issue a stop-work order.

Whether calling OHS would be effective depends on a lot of things, including how close the nearest OHS inspector was, whether the condition existed by the time the officer got there (temperature can change even though the root cause remains), and the degree of (mostly illegal) pressure (overt or subtle) that the employer exerted on the workers to return to work and abandon their refusal.

While Alberta’s labour laws generally provide superior statutory protections than US laws, it is less clear if they offer better actual protection. That is to say, the paradox of poor employment laws is that they may compel workers to adopt more effective tactics to protect themselves than do better laws.

In this way, it is sometimes helpful to think of employment laws as both an effort to provide protections to workers and an effort to direct conflict into manageable dispute resolution processes. In this case, Alberta’s OHS rights provide (in theory) protection against workplace hazards (if you follow the process), but (unlike the US NLRA Section 7 rights) don’t protect other (probably more effective) forms of concerted activity.

Alberta’s Labour Relations Code does provide protections for associational activity, but only in the narrow circumstances of forming or participating in a trade union. A group of non-unionized workers who asked for, say, a better shift schedule and were punished by their boss for doing so, would have no meaningful recourse in Alberta. If they walked off the job in protest of the punishment, they’d just get sacked.

This absence of broader concerted-activity protections in Alberta acts as a barrier to direct and collective action by workers outside of the structure of formal trade unionism. This may, in fact, be the purpose of the absence of such protections—it protects the turf of organized labour and limits the threat posed by workers to employer power.

Whether limiting statutory protections for associational activity to participation in formal trade unionism is consistent with the Charter will be an interesting question going forward.

-- Bob Barnetson

What would UCP labour policy entail?

With a provincial election expected in the spring of 2019, it is useful to consider what labour policies Alberta’s United Conservative Party (UCP) might advance if they are elected. Analysis is made tricky because, (1) while the UCP passed policy at a convention (which should be binding on the party due to Jason Kenney’s grass-roots guarantee), (2) Kenney announced “he holds the pen” on policies after the convention passed some super embarrassing ones.

To try and get a handle on what UCP labour policy might look like in practice I have canvassed Hansard and media statements, UCP policy statements, and social media postings. I’ll limit this post to changes to issues associated with the Employment Standards and Labour Relations Codes.

Employment Standards

Effective October 1, the Notley government will have increased Alberta’s minimum wage to $15 an hour—an increase of about 50% since 2015. The UCP (and its predecessor parties) have opposed this increase in the Legislature, variously asserting:

1. Employers oppose it
2. It will cause job losses and prices to rise, and
3. It does not reduce poverty.

Kenney has been quiet on this issue (he likely wants to prevent the New Democrats from using the spectre of a minimum-wage rollback against him in te upcoming election). Kenney’s only comment in the Legislature was negative:

Mr. Kenney: …What do you think a 50 per cent increase in the minimum wage results in? Well, according to the Bank of Canada 60,000 job losses across the country. According to the C.D. Howe Institute 25,000 job losses in Alberta. Think about how – oh, my goodness – when New Democrats get on their moral high horse and pretend they have a monopoly on compassion, and then because union bosses tell them to, they bring in a policy that, according to the think tanks will kill 25,000 jobs for immigrants and youth. Where is the compassion for those who lost their jobs, Mr. Speaker? There is none. There’s no regard. (2018.04.05, p. 433).

The assertion that rising wages kill jobs seems to resonate with many Albertans. This may explain Kenney’s use of this narrative, despite there being limited and declining support for this position in the economics literature and good evidence that sectors that pay the minimum wage are experiencing growth in Alberta.

The NDs do not appear to have indexed the minimum wage to inflation (gotta save something for the 2019 campaign!) so a UCP government could freeze the minimum wage simply by taking no action to increase it. Over time, inflation would erode its value. Whether a freeze would satisfy the business lobby and more right-wing UCP members is unclear. While Kenney may be coy on a reduction now, as we’ve seen with Doug Ford, once in office, seemingly anything goes.

The Notley government has made a large number of minor changes to the Employment Standards Code. The UCP policy resolution promises a full and detailed review to ensure Alberta’s laws are comparable with other jurisdictions and make “workplaces safe and competitive”. Given that the recent changes to the Employment Standard Code were mostly about bringing it into line with other jurisdictions, I suspect such a review would identify few areas for change. It would be politically for the UCP to easier to just (further) lax enforcement of the law.

It is likely that the UCP would roll back the application of many employment standards to Alberta’s farms and ranches. Agriculture industry associations have indicated they do not support a full rollback (although I imagine they could be talked into some rollbacks…), perhaps because this would jeopardize the funding base of their new safety association.

Kenney’s response?

"What we hear from Alberta farmers loud and clear, not professional lobbyists but regular hardworking people in agriculture, is that this bill is a massive cost driver for them it is unnecessary red tape."

I suspect a significant rollback of farm-workers’ rights across all domains of labour policy would be in the cards. If done carefully, it should be possible for the UCP to prevent a successful constitutional challenge of such a rollback.

Labour Relations

The labour record of the Harper government (in which Kenney was a senior cabinet minister) was deeply regressive. It included:

• back-to-work legislation, 
• legislated settlements in anticipation of work stoppages, 
• over-riding negotiated agreements, 
• eliminating card-check certification, 
• prohibitions on unions assisting women to make pay equity complaints, and mandating onerous union financial disclosures. 

Many UCP members are stridently anti-union. While the party has declined candidate nominations from those espousing that “unions are evil” and that “we should really ban all unions”, those sentiments run deep in the party. Even the most cursory glance at UCP social media accounts (such as Kenney’s Facebook page) yields lots of examples:

The UCP policy document specifically identifies eliminating the recent re-introduction of card-check certification processes and returning to mandatory votes. The evidence on this is unambiguous: giving employers time to interfere in workers’ decisions about whether or not they want union representation (via a mandatory vote) results in more employer interference, fewer certifications, and fewer union drives. Basically, it is an anti-union policy dressed up in the clothes of democracy and would almost certainly be implemented under the UCP.

Kenney has also promised to scrap remedial certification power for the Labour Board revoked. At present, the Board can certify a union if the employer poisons the well through unfair labour practices. Under previous Conservative governments, the only remedy the Board could offer was another drink from the same well (which, of course, is no remedy at all). First contract arbitration would also likely hit the skids.

The UCP policy document also proposes “giv[ing] individual members of labour organizations the right to determine whether or not their mandatory union dues are used to fund political activity and social advocacy.” The reason to pay attention to this proposal is that it is closely associated with the right-to-work movement, whereby union security clauses (which require every worker to pay union dues, because they benefit from a union contract) are profoundly limited or forbidden.

Right to work laws were on the agenda at the UCPs policy convention and appear to be supported by the riding associations of sitting MLAs. These so-called “right-to-work” laws are an effort to undermine the financial security of the union (which, in turn, limits its ability to oppose the employer). They also divert union resources from fighting the employer to collecting dues. About half of US states have right to work laws. Research on their effect is mixed, with results often confounded by other factors.

Overall, a UCP government is likely to make a concerted effort to tip the playing field back in favour of their corporate buddies. This is likely to have a negative effect on the wages and working conditions of Albertans, particularly low-wage Albertans.

If I have time, I’ll have a gander at what Alberta might expect in terms of UCP policy on workplace injury prevention and compensation, immigration, and training as well as the tone of public-sector labour relations.

Update October 15: Kenney recently indicated he would freeze the minimum wage, look at implementing a two-tier wage (based age),and rollback other labour law changes made by the NDs. So, pretty much what you'd expect.

-- Bob Barnetson

Labour & Pop Culture: Office Drug Testing

This week’s installment of Labour & Pop Culture revisits The Office to look at how employers handle drug use in the workplace. This skit is relevant given that, on October 17, cannabis consumption in Alberta (and elsewhere in Canada) will become legal (with some, still emerging, restrictions).

Alberta’s framework for regulating cannabis use is available online and includes a brief (and vague) discussion of cannabis use by workers:

Impairment in workplaces
Workers who are impaired on the job – whether by alcohol or drugs – are a danger to their coworkers and themselves. Alberta already has rules and programs in place to address impairment on the job and keep workers safe, but we are exploring options to better address all forms of impairment in the workplace, and will continue to work with employers, labour groups and workers to ensure the rules continue to address impairment issues. This may include developing additional regulations, education or training programs.

Employer efforts to randomly test workers for drug use and/or impairment have been a long-standing source of conflict in Alberta. For example, Suncor’s decision to randomly test workers has yielded an extensive amount of litigation since 2012 and the issue remains before an arbitration panel. An overview of this litigation can be found here.

Drug testing entails serious and competing interests. It is often framed as a contest between workers’ right to privacy and employers’ obligation to keep workplaces safe (although the evidence that random testing has any safety effect is basically zero).

The debate about drug testing is often tinged with an underlying moral judgment. It goes something like this: since drug use is illegal, workers who use drugs (on their own time) deserve to experience the workplace consequences associated with testing because they are criminals.

This dynamic is, in part, the premise of the joke in The Office skit above. The legalization of cannabis use undercuts this moralizing and it will be interesting to see how employers handle this change in the law.

-- Bob Barnetson