For several years, public service employees have been restricted in their right to strike, in order to preserve their “essential” services. However, some argue that recent changes to Alberta’s public service labour legislation unjustifiably interfere with several rights under the Canadian Charter of Rights and Freedoms (“Charter”)— particularly freedom of association.
Alberta’s Public Service Employee Relations Act RSA 2000 c P-43 (PSERA) and its Labour Relations Code, RSA 2000 c L-1 (Code), provide limits on striking by public service employees. Section 70 of the PSERA prohibits employees or unions to whom the Act applies from striking or causing a strike. Section 96 of the Code prohibits some employees and trade unions from engaging in a strike, causing a strike or threatening to cause a strike. The PSERA provides for compulsory interest arbitration to settle any disputes about terms or conditions of employment; the Code provides for compulsory interest arbitration to resolve bargaining disputes in trade unions to whom the Code applies.
Both the Code and the PSERA provide for fines for people, trade unions and their officers or representatives who cause, consent to, or engage in a strike that is prohibited by the legislation. They both provide that if a prohibited strike commences, the Board may impose a suspension of the deduction and remittance of union dues by the employer (Alberta Government) for between one to six months.
Bill 45, the Public Sector Services Continuation Act, received Royal Assent on December 11, 2013 and is awaiting proclamation. Bill 45 substantially increases the fines and penalties that are imposed on unions, members and employees in relation to strikes that are already prohibited by the PSERA and Code. Additionally, there is an expansion on the type and range of conduct related to strikes in which these fines and penalties will apply.
The following are examples of proposed changes:
- Employees, trade unions and their officers and representatives are prohibited from threatening to strike (section 4(2) and 4(3));
- A “strike threat” includes calling a strike, threatening to call or authorize a strike, setting a poll or vote of employees to see if they want to strike and any other act that could “reasonably be perceived as preparation for an employees’ strike” (section 1(1)(k)(i)–(v));
- A three-month suspension of the deduction and remittance of union dues is automatic upon any finding that a strike threat or strike has occurred. The suspension is increased by a month for each additional day or partial day upon which the strike threat or strike continues (section 6(1) to (2));
- Trade unions can avoid dues suspension in the case of any strike or strike threat if they prove all of the following to the Labour Relations Board:
- The strike or strike threat occurred against the express instructions of the trade union, which instructions must have been given prior to the strike threat or strike;
- All of the actions of the trade union and its officers have been consistent with the instructions; and
- The trade union and its officers or representatives have never previously contravened section 4 (section 6(3)(c)).
- Upon application to court by an employer, if the court finds that a strike threat or strike has occurred, the court must require the trade union to pay $1,000,000 into court for each day or partial day on which the strike threat or strike occurs or continues. Money required to be paid into this fund will be held for a period of at least two years to satisfy any possible judgments relating to losses resulting from the strike or strike threat (sections 9 to 12);
- The trade union can avoid payment into court of the amount referred to above if it proves all of the following to the court:
- The strike or strike threat occurred against the express instructions of the trade union, which instructions must have been given prior to the strike threat or strike;
- All of the actions of the trade union and its officers have been consistent with the instructions ;and
- The trade union and its officers or representatives have never contravened section 4.
- A trade union will not be found liable for losses resulting from a strike or strike threat if it proves all of the following to the court:
- The strike or strike threat occurred against the express instructions of the trade union, which instructions must have been given prior to the strike threat or strikes;
- All of the actions of the trade union and its officers have been consistent with the instructions; and
- The trade union and its officers or representatives have never contravened section 4.
- Employees found to have contravened sections 4(1), (2) or (4) are subject to the imposition by the employer of a penalty of up to one day’s pay for each day or partial day of the breach;
- Substantial fines (e.g., $250,000 plus $50 per employee who belongs to the union that day) are payable by a union for each day or partial day a strike, strike threat or other breach of the legislation occurs;
- Any person who ‘counsels’ another person to contravene section 4(1) or 4(2) is subject to a fine of $500 for each day or partial day on which the offence is found to occur or continue.
The Alberta Union of Provincial Employees (“AUPE”), which represents Alberta Government employees, recently applied to the Alberta Court of Queen’s Bench for a declaration that the Public Sector Services Continuation Act breaches the Charter and is not saved by Charter section 1. The Court will determine whether the objective of preserving public services and saving taxpayer money is pressing and substantial, whether the provisions in Bill 45 are rationally connected to this objective, and whether these provisions minimally impair the rights and freedoms in question (including freedom of association). Of particular interest is the allegation that the new legislation violates Charter section 2(d) freedom of association.
Section 2(d) of the Charter guarantees individuals the freedom of association. Freedom of association includes the right to establish an independent employee association and to exercise in association, the lawful rights of its members (Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989). Originally, the Supreme Court of Canada held that freedom of association does not include, in the case of a trade union, the right to bargain collectively or the right to strike. Nevertheless, the SCC later held that freedom to associate becomes meaningless if the state does not take positive steps to ensure that this right is not a hollow one.
In the case of Bill 45, AUPE argues that the government employees have the right to organize, to engage in a meaningful process of good faith collective bargaining in an attempt to achieve workplace-related goals, and to seek to negotiate important terms and conditions of employment into a collective agreement. They assert that freedom of association also includes the right of unions and their members to engage in partial or complete withdrawal of their labour as part of the collective bargaining process. The AUPE argues that section 4 of Bill 45 breaches the right to freedom of association by prohibiting all unions and employees from threatening to withdraw or from actually withdrawing their labour as part of the collective bargaining process or for any other purpose. They argue that the same is true for Section 70 of the PSERA and section 96 of the Code. In addition, they assert that the penalties, fines and the abatement fund provided under Bill 45 have the effect of “financially crippling” trade unions.
If the AUPE is successful in any of its Charter arguments, the Alberta Government will have the opportunity to defend its proposed and existing legislation under Charter section 1, which provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
To justify Bill 45’s limits on Charter rights, the Alberta Government will likely argue that the purpose of the legislation is to “protect the Alberta taxpayer from an illegal strike,” and establish a “more comprehensive and responsive system to respond to the threat of illegal strikes or strikes themselves.” Further, the threat of a strike requires significant mobilization of resources to avert harm in the event that a strike happens. The Government will assert that Bill 45 is an effective deterrent to illegal behavior, and thus will help ensure that Albertans receive essential services. This Bill also addresses the workers who feel pressured not to cross an illegal picket line by punishing unions who call an illegal strike.
The Court will determine whether the objective of preserving public services and saving taxpayer money is pressing and substantial, whether the provisions in Bill 45 are rationally connected to this objective, and whether these provisions minimally impair the rights and freedoms in question (including freedom of association).
This lawsuit demonstrates the importance of freedom of association in the labour relations context, while illustrating how the Government will have to justify any limitation of those rights. It also illustrates the importance of consultation with stakeholders when proposing a new law or a significant amendment to a law. One of the major complaints in this lawsuit is that the people who will be most directly affected by the Bill were not adequately consulted before it was proposed and passed.
About Linda McKay-Panos
