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

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

How Alberta’s Bill 1 Constrains Workers’ Rights to Protest

This post originally appeared on the Canadian Law of Work Forum.

On February 25, Alberta’s government introduced Bill 1 (the Critical Infrastructure Protection Act) in the Legislature. If passed, Bill 1 will allow police to arrest without warrant anyone who is present at any location defined as essential infrastructure or who interferes with the operation of the infrastructure “without lawful right, justification or excuse”.

The legislation is putatively designed to reduce the likelihood of economic disruption caused by civil disobedience, such as the recent railway blockades in support of the Wet-suwet’en First Nations. This Act will, however, significantly constrain the ability of workers to exert pressure on employers in Alberta.

Bill 1: An Overview
Bill 1 prohibits entering, damaging, destroying or interfering with the operation of essential infrastructure “without lawful right, justification, or excuse.” It also prohibits aiding, counselling, or directing someone else to do so.

In addition to arrest without warrant, those found in violation of the act face a minimum fine of $1000 for a first offense, with a maximum fine of $10,000. Second and subsequent offences see the maximum fine rise to $25,000. Each offence can also result in a jail term of not more than 6 months. Each day that an offense continues is considered a separate offence under the Act.

An essential infrastructure includes pipelines, utilities, mines and oil production sites, highways, railways, powerplants, agricultural operations, and dams. Bill 1 also allows cabinet to extend the list of essential infrastructure through regulation.

Of particular note is that a highway, as defined in Section 1(1)(p) the Traffic Safety Act is a verybroad term. It includes any publicly- or privately-owned thoroughfare, street, road, trail, avenue, parkway, driveway, lane, alley, square, bridge, or causeway, including adjacent sidewalks and boulevards.

Analysis

Alberta’s United Conservative government asserts that Bill 1 is necessary to protect the province’s economy from disruption. Numerous commentators have noted that the behaviours prohibited by Bill 1 are already illegal under other statutes. In this way, Bill 1 is unnecessary duplication and may be simply a political nod to government supporters, including employers.

An alternative analysis is that Bill 1 is designed to heighten the cost associated with effective pressure tactics that workers might exert. Precluding individuals from being present on sidewalks or boulevards “without lawful right, justification or excuse” would, for example, dramatically raise the risk and cost associated with information and solidarity pickets.

For example, during the recent lock-out of Co-op refinery workers in Regina, Unifor locals and allies have shut down fuel distribution depots and conducted information pickets of gas stations in order to exert economic and reputation pressure on the refinery. These actions occurred on sidewalks, boulevards, and driveways and could constitute entering essential infrastructure without lawful reason. Bill 1 would allow the police to immediately arrest such protestors and require a minimum $1000 fine for a first offence. The spectre of these consequences will undermine the viability of such actions in the future, thereby benefitting employers.

Of particular concern to Alberta labour activists is the impact of Bill 1 on public-sector labour relations. Virtually every public-sector collective agreement in Alberta is up for negotiation this year. The United Conservative government has signalled its intention to reduce public-sector compensation. To help achieve wage rollbacks, the government delayed arbitrations last summer. It then gave itself the power to issue binding and secret bargaining mandates to public-sector employers. In light of this, unions expect the government is also considering back-to-work legislation, a strategy recommended by Alberta’s recent Blue-Ribbon panel on provincial finances.

Consequently, Alberta’s public-sector unions are taking unprecedented steps to prepare their members for job action. This member mobilization—including information picketing outside public facilities—is publicly framed as preparing for legal strikes. At mobilization events, however, wildcat strikes are being explicitly discussed. Many activists suggest that wildcat strikes may be much more effective at causing the government to shift its position at the bargaining table. Although it has a conservative reputation, Alberta has a recent history of wildcat strikes in health care (2000, 2012), construction (2007), and the prison system (2013).

For the government, Bill 1 would be a useful supplement to existing laws prohibiting job action other than legal strikes. Public-sector institutions could be easily named as essential infrastructure through regulation and picketing prohibited. The threat of immediate arrest would likely reduce the willingness of workers to picket during a wildcat. This, in turn, degrades workers’ ability to solicit public support and/or disrupt operations in order to pressure the government.

While there are no publicly available analyses of the constitutionality of Bill 1, it appears to sit uncomfortably with our Charter freedoms of expression and of peaceful assembly. Both of these rights permit peaceful protests in public spaces, such as sidewalks or lands associated with public buildings. While the use of Bill 1 to suppress picketing and other worker actions would undoubtedly be challenged, such challenges are slow. In the meantime, the law continues to operate.

If this analysis of Bill 1’s effect on labour relations is correct, Bill 1 represents another step in Alberta’s rolling back of workers' rights. Alberta did away with card-check certification, rendered the public-sector replacement worker ban ineffective, and opened up holes in over-time pay provisions last summer. It then interfered with contractually required arbitrations and allowed itself the power to issue secret and binding bargaining mandates. Now it appears poised to restrict workers’ freedom of expression and peaceful assembly.

-- Bob Barnetson

Judge strikes down a portion of Canada's sex work laws

In December, AU opened a new course (LBST 415: Sex work and sex workers). One focus of the course is how governments regulate sex work and sex workers, with an eye to which approach yields the best results for sex workers.

In 2014, Canada amended the Criminal Code to decriminalize the sale of sexual services (in most instances). The purchase of sexual services and any acts designed to facilitate the sale of sexual services remain criminalized. 

This approach is often called the Nordic model and is intended to extinguish demand for sex work (although it has not) while making it safer for sex workers to seek police assistance (which it also has not). The law was supposed to have been reviewed by the government in 2019, but it was not.

An interesting development last month was that an Ontario judge struck down portions of Canada’s law on sex work that criminalized procuring, advertising, or materially benefitted from the sale of someone’s sexual services. The case involved a couple who ran an escort agency.

The judge’s rationale was prohibiting advertising violates freedom of expression while the laws against procuring and materially benefitting violate the Charter guarantee of security of person. The crux of the rationale is that the prohibitions make it difficult for sex workers to screen clients, work cooperatively, and to purchase certain services, all of which make sex work safer.

Those opposed to the decision frame this ruling as protecting pimps who traffic in exploited women and girls. While rhetorically powerful, this analysis ignores that there is significant nuance in the “management services” that sex workers may purchase as well as that human trafficking remains illegal.

This line of critique also contributes to the conflation of sex work and human trafficking. While there is overlap (some trafficked women and girls are involved in sex work, and some of this involvement in sex work is against their will), most sex work appears to be consensual activity.

That is not to say there isn’t an element of exploitation involved in sex work. But it is important to identify that sex workers have agency. A part of recognizing this agency is providing sex workers the opportunity to engage in sex work in ways of their choosing. Analysis of New Zealand (where sex work has been legalized) suggests this model yields the best outcomes for sex workers.

-- 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

The case for union raiding

A last week back, Unifor withdrew from the Canadian Labour Congress (CLC). Larry Savage wrote a pretty good explanation of the dispute here. One of the sources of friction appears to be the CLC’s prohibition of raiding among its member unions.

Typically, labour laws create regular “open period” during which unionized workers can choose to be represented by another union or no union at all. (If the workers take no action during this period, they remain unionized and represented by their existing union.) Raiding entails a union seeking to become the certified bargaining agent for a group of employees already represented by another union during this open period.

Many trade unionists and labour federations argue that unions should focus their efforts on organizing the unorganized rather than seeking to raid already unionized workers. They also note that raiding is also a ploy often used by employer-friendly labour organizations—such as the Christian Labour Association of Canada (CLAC)—to expand their membership (often with the tacit support of the employer) at the expense of real unions.

For this reason, labour federations typically prohibit raiding. For example, Article 4.5.a of the CLC Constitution states:

Each affiliate respects the established collective bargaining relationships of every other affiliate. No affiliate will try to organize or represent employees who have an established bargaining relationship with another affiliate or otherwise seek to disrupt the relationship. 

There is, later on, a process by which union members can seek a change in union representation within the framework, but the constitution indicates that this process will "(h)ave as a primary objective, working with the affected members and the affiliate, to have them remain with their union" (Article 4.9.h.i).

Looking through these provisions, the practical reality is that unionized workers whose whose current and desired unions belong to the CLC, will be forced to decertify (which essentially voids their collective agreement) and then recertify (with all of the risk that that entails).

Governments recognize this would be a very high-cost process for workers (and thus one that would impede workers from exercising choice) so most legislation provides for an option to raid (which results in a relatively seamless transfer of bargaining rights and collective agreements).

Raiding often causes significant friction within the labour movement. For example, the 2001 expulsion of the Alberta Union of Provincial Employees (AUPE) from the Alberta Federation of Labour (AFL) was caused (at least, in part) by AUPE’s raiding of Canadian Union of Public Employee (CUPE) units. AUPE continues to operate independently and is now Alberta's largest union and one of the most aggressive organizers of workers.

Voicing any kind of approval of raiding is a quick way to get frozen out of the labour movement. Yet there are some compelling arguments for allowing this practice.

First, unions have fought for constitutional protection of workers’ right to join unions, bargain, and strike. If the workers have a Charter right to join a union, surely it is also reasonable for workers to expect to be able to periodically select a different union?

While unions are free to join an organization like the CLC and thereby bind themselves to a constitution that prohibits raiding (a document outside the ambit of the Charter), such a prohibition looks hypocritical given unions’ defence of workers’ freedom of association.

Second, raiding (which is relatively uncommon) provides workers with an important protection against poor union representation. The CLC constitution explicitly contemplates addressing poor representation in its dispute process and aims to identify problems and give the union time to remedy them.

While it is true that union members dissatisfied with their representation can attempt reform through internal union processes (e.g., persuasion or electing a different executive) or the CLC process, these processes sometimes don’t work. They entail delay and delay typically tends to work in favour of the more powerful party (in this case, almost always the union executive) which can use the delay to pressure dissidents to knuckle under.

In the end, I think the threat of a raid is a more powerful incentive for unions to be attentive to the needs of their members. Further, if a union is doing such a poor job that it gets raided, the raid is probably a good thing for workers overall.

If the labour movement is about representing workers' interests, then perhaps allowing workers to periodically switch unions (through a democratic process) is not an unreasonable thing to expect. Constraining worker choice hands opponents of trade unionism a powerful rhetorical tool with which to attack unionism.

-- Bob Barnetson

Free lecture: Farm worker rights in Alberta.

On Saturday, November 4, the University of Calgary Faculty of Law is hosting a free public lecture entitled "The rights of farm workers in Alberta: Past, present and future" from 10 to noon in room 3360 Murray Fraser Hall. You can registered here. The lecture description is:

This session will discuss the historical exclusion of farm workers in Alberta from labour and employment protections, including the impact of those exclusions on farm workers and the constitutionality of the exclusions under the Canadian Charter of Rights and Freedoms. 

Recent changes to Alberta laws have extended some protections to farm workers, but those changes were contested, leading to the exemption of farm workers on family farms, as well as some other gaps in protections. What does the future hold for the protection of farm workers' rights in Alberta? 

Professor Jennifer Koshan will be the presenter, along with special guests Darlene A. Dunlop and Eric Musekamp of the Farmworkers Union of Alberta.

Earlier this year, the Faculty of Law hosted a book launch for Farm workers in western Canada.

-- Bob Barnetson

Book: Unions in Court

This summer I tried to actually take my vacation and not just keep working. For the most part, I was successful. I did, however, take time to read Unions in court: Organized labour and the Charter ofRights and Freedoms (2017, UBC Press) by Larry Savage and Charles Smith.

Great read! The book traces the labour movement’s come hither-go away relationship with Charter litigation over the past 30 years. This historical analysis of unions' relationships with the courts provides a nicely nuanced explanation for why unions have, over time, come to embrace Charter litigation. In short

…[W]e have argued that while unions were initially hostile to constitutionalized labour rights for fear of how they might be interpreted by an unsympathetic judiciary, significant sections of organized labour ultimately retreated back to the legal arena, shed their judicial phobia, and wrapped themselves in the rhetoric of “worker rights and human rights” as a response to the growing tide of neoliberalism and the crisis in social democratic electorialism in the 1990s. (pp. 208-209).

The authors then go on to examine the pros and cons of this dynamic, continuing the long-running debate (often between Savage and Professor Roy Adams) around the ultimate utility of framing “worker rights and human rights”. The book also does a nice job of outlining the key wins and losses experienced by the labour movement.

Students in IDRL 309/LGST 310 might want to pick this book up!

-- Bob Barnetson

Mirror, Mirror: NDs act like Tories on Bill 7

Last week, Alberta’s Bill 7 was passed and came into effect. This Bill moves faculty and graduate student collective bargaining under the Labour Relations Code. This means bargaining impasse will (effective immediately) be resolved via strike-lockout. Overall, Bill 7 is sensible and necessary to respond to the evolving jurisprudence around freedom of association.

The two most contentious parts of Bill 7 have to do with transition periods. Bill 7 creates a five-year ban on workers selecting a different (or no) union. In contrast, Bill 7 moves workers from arbitration to strike-lockout immediately (and, indeed, a bit retroactively).

During debate, Alberta Party MLA Greg Clark introduced an amendment to create a transition period to strike-lockout. This extra time, he said, would allow workers and their unions time to prepare, both financially and organizationally for this fairly fundamental change to bargaining. Clark proposed a three-year extension, but even a one-year delay would have been a huge improvement.

Advanced Education Minister Marlin Schmidt indicated the government would oppose the amendment:

We believe, Madam Chair, that because of the length of time between the introduction of this bill, the lengthy consultation process that we’ve engaged in with our stakeholders since October 2015, and the fact that this decision came down in early 2015, the faculty associations have had approximately two years to prepare for a transition to this strike/lockout model. We believe that the transition time that has been given and is recognized in this bill is appropriate and just. (p. 811).

This response has a certain alt-facts ring to it. The content of the legislation was unclear until a month ago. The government clearly promised during the consultations that there would be a transition period. Every submission I saw by faculty associations flagged the need for a transition period. By contrast, there was no indication that strike-lockout would start immediately or affect negotiations currently underway. That kind of news would have galvanized associations to act immediately.

The Minister’s suggestion that the consultation period was the transition period (just, apparently, a secret transition period) is the kind of sophistry unions are used to from Tory governments. Compounding the growing sense that we'd slipped into some kind of alternate universe was ND MLA David Shepherd efforts to do some damage control later that day:

Now, the fact is that nobody will lose the right to use binding arbitration if Bill 7 is passed. In fact, it remains available on a voluntary basis, with agreement from both parties, under section 93 of the Labour Relations Code. (p.830)

This statement is either deeply naïve or completely disingenuous. Labour relations are about power and money. If an employer suddenly (by act of government) finds itself in a better position to grind wages, is it really gonna agree to binding arbitration and give away that advantage?

So what is the real reason for this double-cross?

Shepherd helps us out here when he explained the rapid shift to strike-lockout is about saving the government money: “Indeed, I think it’s a fiscally responsible thing to do… .” (p. 830) and “it will allow the faculty, the graduate students, postdoctoral fellows, and the institutions to come to more prudent agreements ” (p. 831). “More prudent” is neoliberal code for “lower wages”. Still later, Shepherd noted:

Indeed, given our current economic climate I think it makes sense that we try to find labour negotiation models that are going to ensure that we use public dollars responsibly. We know that compulsory arbitration in the past has at times tended to result in higher wage increases. That’s something that’s not sustainable, and we certainly recognize that it is not the direction to be going in for the province right now (p. 831)

Shepherd is, of course, wrong about arbitration giving unions unsustainable wage increases (my association, for example, have taken zeros in four or five of the last 10 years because that is what we would have gotten at arbitration).

Setting aside, you know, facts, basically what is going on here is the NDs are in a fiscal bind and most expeditious way to minimize the wage bill in PSE was to give employers a hammer in the short-term by moving to strike-lockout while unions are unprepared.

This is exactly the kind of move the Tories would have made, although the Tories would have at least had the good political sense to lie about it. That the NDs have done this under the guise of protecting workers’ associational rights is particularly galling.

To be fair, the NDs weren’t the only who appeared to have transported into an alternate universe. Wildrose MLA Wayne Anderson proposed extending the period during which workers are stuck with their current bargaining agent from 5 years to 10 years. So basically the province’s most right-wing party is advocating forced unionization. (Pro tip: This may not play well with the base.)

Anderson’s motion is also inconsistent with the Wildrose’s handwringing about the possibility that the NDs will enact card check certification for workers throughout Alberta. Basically, the Wildrose is (facilely) asserting that the only democratic way to determine if workers want a union is through a certification vote (which gives employers time to meddle in the workers’ decision). Yet, apparently, it is cool and all democratic-like to deny faculty and grad students any opportunity to select a different (or no!) union for 10 years.

The ND’s response?

Mr Schmidt: … Of course, they won’t have that choice until 2022 as we recognize that there is some need to transition faculty associations and grad student associations into the new model so that they are well positioned to represent their members at the bargaining table. … We feel that 2022 is certainly an adequate transition time. Five years will give every faculty association and grad student association ample time to prepare for that date. (p.813)

Again, a totally factually incorrect statement: faculty associations and GSAs have been successfully representing their members for years. There is no need for a transition period around raiding and decertification.

Yet, if we accept the logic of Minister Spock's Schmidt's statement, he's but himself in the untenable (and illogical position) of saying that (1) faculty associations need time to transition to the new rules around bargaining agent status but (2) they can just be dumped willy-nilly into a new dispute resolution process where their employers will have an opportunity to roll them at the bargaining table?

This is a profoundly disturbing (and hypocritical) position for the government to take.

Faculty deserve the right to select their bargaining agent now, not in 2022.

Faculty currently in bargaining deserve a fair chance to prepare for a lockout by their employer instead of being dropped in the soup by the NDs.

And faculty deserve an apology for (1) being misled by the government about the transition period and then (2) thrown under the bus so the NDs can try to lock up the centre vote by being "fiscally prudent".

-- Bob Barnetson

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

Alberta rushes profs towards strike-lockout

Last week, Alberta's Minister of Advanced Education (Marlin Schmidt, right) introduced changes to labour laws that affect faculty, grad students, and post-docs in Alberta’s colleges, universities, and technical institutes. Previously, labour relations were conducted under the ambit of the Post-Secondary Learning Act, which contains an incomplete set of labour laws.

Bill 7 mostly moves PSE labour relations under the ambit of the Labour Relations Code. This broadly mirrors the situation in other provinces and is a good policy change. The two provisions of Bill 7 that may warrant amendment have to do with transition periods.

Bill 7 gives academics the right to choose a different (or no) union—just like every other worker in Canada. But Bill 7 contains a five-year transition period (to 2022) during which workers cannot exercise these rights. A period of this duration makes little sense because it precludes academics who have legitimate concerns about the operation of their association from exercising any choice for five years.

The prospect of a union losing its bargaining-agent status is an important check-and-balance in unionized workplaces. It (along with the duty of fair representation) pressures unions to do their best to represent their memberships' interests. This is more than a theoretical argument. As I wrote a few weeks ago, there are a number of members of the U of A graduate students association who want to have the opportunity to select a different bargaining agent.

The other transition period issue in Bill 7 has to do with the shift from resolving bargaining impasse by arbitration to resolving it via strike-lockout. I see this change as a good one and in keeping with the Supreme Court’s SFL decision of 2015. My concerns are about the lack of a transition period.

Assuming Bill 7 is passed in its current form, all existing arbitrations will be allowed to continue but any bargaining impasse that occurs after April 6, 2017 will be resolved through strike-lockout. The absence of a transition period to strike-lockout (which was promised to faculty associations) leaves 7 (I think) faculty associations that are currently in bargaining in a bad position.

They are in a bad position because, when you bargain, you base your bargaining strategy on your BATNA (best alternative to a negotiated agreement). Under arbitration, the BATNA is basically the salary settlements at comparator institution. If the employer won’t come close to that, you have reached impasse and off you go to arbitration.

Under strike-lockout, the BATNA is whatever you think you can force out of the employer by withdrawing your labour. This might be more or less than comparator settlements. The ability of unions to withdraw their labour depends (in part) on their financial resources (e.g., strike fund) and membership committee to the bargaining position.

Having the dispute-resolution process change in the middle of bargaining is problematic because these unions have no strike funds and haven’t been building solidarity around their position. Maybe this is just tough beans but the associations took action based on assurances they had (or felt they had) from the government.

Consequently, an aggressive PSE employer can now impose a short lockout on the workers, bring them back, and then impose the employers’ last contract. (Procedurally it is a bit more complicated but that is the crux of the issue. Whether employers will be aggressive is an open question—my experience with my employer is that they would absolutely take advantage of this opening.)

Whether a union could effectively strike (which is the countermove to the 24-hour lockout) is also unclear. I suspect many faculty associations would struggle to do so. (To be fair, faculty association may be able to remedy the “strike-fund” problem by joining the CAUT strike fund (assuming the normal six-month waiting period is waived) or by securing a loan from CAUT or a bank.)

This means that the lack of a transition period is the government handing the employers a pretty big lever. I can’t really fathom why there was no transition period. The issue was raised in consultations and the government pretty clearly gave assurances to the unions that they wouldn’t get thrown to the wolves like this.

The most charitable explanation for this decision is the government decided that complying with the Supreme Court’s direction was the most important thing to do. The only support for this inference that I can find is Schmidt's brief statement in the House Thursday when he introduced the Bill:

Our government is committed to fair legislation that makes life better for hard-working Albertans, and we are committed to complying with the Supreme Court of Canada decision guaranteeing Canadian workers the right to strike. (p.552)

That explanation stands in contrast to the more widely accepted explanation: this is an effort by the government to help PSE employers grind down labour costs (which helps the government meet its fiscal targets and insulates it from criticism that it is coddling organized labour). Absent any government statement on this issue, I'm inclined towards the latter explanation.

The official response from faculty associations has been pretty professional (for example). The private responses I have heard from around the province are basically a very, very angry “what the fuck?” (often in those exact words). Many unions are feeling betrayed.

The answer to the “so what?” question starts in Calgary. The University of Calgary’s faculty association opposed these changes in the law. I think that was an error, but whatever. They are presently in bargaining with their employer. If, in the end, the U of C faculty feel they are forced to accept a bad deal (because they can’t handle a strike), that could translate into lost votes for the NDs in Calgary in 2019. The NDs need Calgary seats to form government again. And there are six other institutions in the same boat.

Now maybe the political calculus here is that (1) “that's two years from now”, (2) “who else are academics going to vote for—book burning so-cons?”, and (3) “we’re not going to win the rural seats where most of these colleges are anyhow”. If that is the calculation, I have to wonder if the political risk is really worth not providing a year or two of time to allow for an orderly transition? A year-long transition is no big deal--no one is going to file a constitutional challenge over it.

I’m feeling pretty fortunately my association isn’t caught out. But that was dumb luck. We have been active in putting together a strike fund, but we’re not ready. “Fortunately”, my employer completely pooched bargaining in February 2016 and, subsequently, stalled the arbitration process, so we’re still waiting to go to hearing. But we could easily have been in a bad spot.

To further complicate things, the seven institutions now bargaining under strike-lockout will need to negotiate essential services agreements with their employers (unless both sides decide to voluntarily refer impasse to interest arbitration—a case-by-case decision). Many small associations have limited labour-relations capacity and the situation has been made worse for colleges because of the disintegration of the Alberta Colleges-Institutes Faculty Association.

I wonder if a small amendment—reducing (or eliminating) the bar on raids and revocations and delaying the imposition of strike-lockout by a year or two—would be appropriate. This better protects the basic rights of workers to choose their bargaining agent while preventing employers from hammer the workers in this round of bargaining?

-- Bob Barnetson

Why do I have to read Supreme Court decisions?

I’m currently revising AU’s course on Human Rights, the Charter and Labour Relations. One of the recurring challenges that students identify is how difficult it can be to read and understand court decisions (specifically Supreme Court of Canada decisions).



While I’m including some skill-building components around reading court decisions, it is useful to reflect on (1) why we need to read these decisions and (2) why they are hard to read. The short video above is about the US Supreme Court but its logic is broadly applicable to Canada.

We need to read the decisions because they establish important legal precedents and explain why these precedents are established. And these decisions are difficult to read because the Supreme Court is a political institution that is seeking to achieve multiple outcomes (including resolving the case) with its decisions.

-- Bob Barnetson

Harassment as an OHS issue

A private member’s bill (Bill 208) has been introduced in the Alberta Legislature that amends the Occupational Health and Safety Act to prohibit workplace harassment. Chapter 6 in the OHS textbook Jason Foster and I just wrote provides some useful context on harassment and bullying.

Bill 208 defines harassment as “any inappropriate conduct, comment, display, action or gesture by a person” that constitutes a threat to the health or safety of a worker based on either a protected ground or which “adversely affects the worker’s psychological or physical well-being and that the person knows or ought reasonably to know would cause a worker to be humiliated or intimidated.”

The Act places some parameters around instances of conduct the adversely affect a worker’s well being. It notes harassment can comprise “repeated conduct, comments, displays, actions or gestures” or “a single, serious occurrence of conduct, or a single, serious comment, display, action or gesture, that has a lasting, harmful effect on the worker.” Reasonable action by the employer related to the management of workers or the worksite is not considered harassment.

The short of the rest of the obligations are that employers must now have and enforce policies around workplace harassment. (How this works if the employer is the harasser is an interesting question... .) If an employee believes the employer has botched the investigation of a workplace harassment complaint they can report the matter to Occupational Health and Safety and OHS will investigate.

Workplace harassment and bullying appears endemic. A 2014 panel study suggests 23% of workers have been bullied at work. There is a higher 2012 stat (45%) floating around, but the methodology gives me the willies so I’m going to go with this more conservative number.

In theory, Bill 208 provides a new avenue for redress (especially for non-unionized employees) around harassment. I’m not an expert in workplace bullying, but I have seen a fair bit (both at when I worked at the Labour Board and as my union’s grievance officer). The questions I have about this (quite laudable) legislation are:

1. Bullying or tough management: As Jason and I wrote, “The line between “tough” management and “bullying” management can be difficult to ascertain, especially if the bullying takes the form of misuse of managerial prerogatives such as scheduling, work assignments, and the like.” And, “Some researchers suggest that employers may overtly or covertly encourage bullying by managers as a way to maximize the work the employer can extract from its workers.” (p.132) The note in the OHS Code that “reasonable actions by the employer” related to management do not constitute harassment will likely means “smart” bullies will be able to evade sanction. 
2. Penalties: Alberta does a poor job of penalizing OHS offenders (e.g., prosecutions and fines are down over time), which may (partly explain) its very high rate of injury. If a worker complains and an OHS officer finds the employer botched the harassment investigation and issues an order that the employer ignores (or otherwise subverts), what happens? In theory, the OHS officer can push for an administrative penalty (i.e., a fine). There is no data I can find on how often Alberta issues these. I would guess there is little prospect of meaningful penalties so employers are most likely to create a policy (e.g., by downloading one from the web) and otherwise ignore the new requirement.
3. Enforcement: Alberta has about 130(ish) OHS officers for 160,000(ish) employers. This level of resourcing is inadequate to meaningfully enforce the existing OHS laws. Consequently, OHS focuses its efforts on big-ticket items (e.g., fatalities, repeat offenders, bad industries). Absent more resources, it is unlikely harassment will get much attention unless there is a complaint. Complaints are, frankly, unlikely. Workers aren’t stupid and will see that employers’ ability to argue “tough management” combined with the absence of meaningful penalties means this Bill creates a right to be free of harassment that they will not be able to realize. This is the same dynamic that drives workers to not refuse unsafe work or report wage theft: they know there is little chance their report will help them out and it may make things worse.

To be fair, this Bill serves an important hortatory and educative purpose: it publically condemns this behaviour and says it is up to employers to stop it. But to make real change in the workplace is going to require government enforcement activity.

As a trade unionist, I wonder if this Bill gives firmer footing for work refusals when there is significant harassment? Specifically, could a group of workers (unionized or otherwise) collectively refuse to work for a harassing boss (i.e., wildcat) and claim such action is protected action under the OHS Code? And how would this play out in a small workplace, such as a restaurant or retail operation?

-- Bob Barnetson