The Conservative political movement in Canada has decided to test the outer limits of the Constitutional freedom to associate, passing progressively more draconian restrictions on worker associations. The latest battle ground is conservative Alberta, where the Conservative Party has past such draconian anti-collective bargaining laws that all three opposition parties (including the Wild Rose Party) argued the government had gone too far. The ultimate goal is to give employers the right to unilaterally set working conditions and to strip workers of any legal right to pressure for improvements. Weakening the labour movement is a key pillar in the Conservative master plan to limit dissenting voices to their policies.
How the Supreme Court responds to this aggressive attack on collective rights is among the most pressing public policy questions in Canada today. It’s no hyperbole to state that the outcome of this battle will have dramatic affects on the future of Canadian society. Will Canada continue to have a relatively strong record on income equality and middle class compared to the United States, or will we follow the American model of stripping workers of power to bargain a decent share of productivity gains? In the United States, unionization is now at about 7 percent, and income inequality is the highest in the advanced economic world. The two statistics are directly linked. We know precisely what the results of the coordinated Conservative attack on Canadian collective bargaining will be: greater income inequality in Canada and a weaker middle class. Of this, there is no doubt.
Snapshot of relationship between falling union density and increase in share of national income going to richest 10 percent in the United States. So, why again do the Conservatives want us to follow American lead by attacking collective bargaining? Could it be their interests are aligned with that Red Line?
The big questions are: (1) whether (and why) average Canadians who are not in the top 10 percent would support this direction; and (2) whether the Supreme Court of Canada will interpret freedom of association in the Charter as an empty vessel that provides no protection whatsoever for workers who wish to engage in collective bargaining.
The Federal Tories have essentially removed the right to strike from Federal workers, passing back to work legislation whenever a work stoppage begins, or is even threatened. The Saskatchewan Party gutted labour laws in a series of Bills designed to shift the balance of labour relations far towards the employer’s side of the ledger. The Ontario Conservative Party is up to it’s usual childish bully name-calling (“union bosses”, etc.) tactics, threatening to bring Alabama style low wage, anti collective bargaining policies to Ontario. Not to be outdone, the ultra right wing Alberta Conservative Party has now joined the fray, passing anti-union laws that not only ban strikes, but also block access to interest arbitration. The Federal Tories and Saskatchewan Party banned strikes and then stacked the interest arbitration process so that employers would get their way; the Alberta government just dropped the pretext, and banned arbitration altogether. The Alberta government can now just make up whatever terms of employment it likes and impose them on employees. Any attempt by workers to resist will be met with draconian fines ($1 million per day for a strike), demonstrating that if governments were actually motivated to encourage compliance with labour laws, they could impose real penalties.
I’ve already been contacted by lawyers prepping for a Charter challenge against the new laws. These legal actions will be piled onto the many others working their way through the courts under Section 2(d) of the Charter. If the unions lose these cases, then Conservatives will be able to dismantle the Canadian collective bargaining system, moving us further and faster in the direction of the American nonunion model, the results of which are depicted in the graph above. The Supreme Court could throw up some road blocks, because unlike the USA, our Constitution guarantees workers’ ‘freedom of association’. However, despite some recent victories (see B.C. Health Services, Dunmore), the courts seem to be pulling back. The biggest threat to collective bargaining is two recent decisions of the Ontario Court of Appeal decision. In Mounted Police Association of Ontario v. Canada, the Court ruled that governments can legislate a non-arms length employee association and require the employer to deal only with that organization (and not a real independent union). And in Association of Justice Counsel v. Canada (2012), the Court ruled that freedom of association protects only a right of government workers to engage in a process of bargaining, but once the government decides it’s wasted enough time ‘bargaining’, it can simply pass a law imposing whatever terms it likes. The former case is on its way to the SCC in the new year, while leave to the SCC was refused in the latter.
If the SCC decides in the new year that there is no Constitutional right to strike, and that Mounted Police Association was decided correctly, the game is over. If Canadians vote for Conservative governments, they would be voting for the elimination of effective collective worker action and a full shift towards the American model. Next year promises to be an interesting one for Labour Law. But then, what year isn’t?
To provide some further context on the recent Alberta antiunion laws, here’s a summary from Professor Bob Barnetson from Athabasca University in Alberta. Bob writes the very good blog Labour & Employment in Alberta:
Professor Barnetson: “The Government of Alberta has just enacted new labour legislation that is attracting significant criticism from labour groups and even the ultra right-wing Wild Rose opposition. Bill 45 (the Public Services Continuation Act) imposes significant penalties on unions, workers and members of the public for illegal strikes and making “strike threats”.
Bill 45 has been criticized as infringing upon workers’ Charter-protected freedoms of association and speech. While illegal strikes have always been punishable under Alberta Labour Relations Code and Public Service Employee Relations Act, Bill 45 radically increases these penalties and provides for:
- Automatic three-month dues suspensions for an illegal strike or strike threat.
- An “abatement” penalty of $1 million per day of an illegal strike or strike threat to offset employer costs associated with an illegal strike or strike threat.
- Civil contempt proceedings against individuals.
- Administrative penalties (decided by the Minister) of a day’s wage per day of illegal strike or strike threat by individual employees.
- Penalties of $250,000 per day (plus $50 per affected employee) against a union, $10,000 per day against union officers, a day’s wage per day against employees who participate, and $500 a day against non-employees.
The provision for fines against non-employees (e.g., journalists, academics) could be levied for counseling public service employees to strike (a violation of s.4(4)). Of particular concern are penalties for “strike threats” which are broadly defined under s.1(1)(k) as calling or authorizing a strike, threatening a strike, setting a vote for a strike, preparing for a strike. Strike activity is also broadly defined to include work cessation, refusal, slowdowns or activity restricting or disrupting production or service.
This bill seems to be a reaction to a three-day illegal strike in the spring of 2013 by corrections officers over unsafe working conditions at the new remand centre that embarrassed the government. In the past decade, there have been a total of two illegal strikes in Alberta, lasting one day and three days respectively.
“Critics note that a fine of a $1 million a day for a strike threat is much larger than the maximum penalty employers face for killing workers.”
Bill 46 (the Public Service Salary Restrain Act) imposes a four-year wage settlement on civil service workers (represented by the Alberta Union of Provincial Employees) if the union and the government can’t come to a deal by the end of January. AUPE and the government had been bargaining for almost a year and matters were scheduled to go to arbitration (as per the provisions of the Public Service Employee Relations Act). But this process has been suspended by Bill 46 in order to impose a two-year wage-freeze followed by two years of 1% COLA increases on the workers.
Critics suggest that this legislation violates workers’ freedom of association by denying them a meaningful process of collective bargaining. Critics also suggest that prohibiting workers on maternity, parental and sick leave as well as workers’ compensation from receiving an $875 one-time payment (in lieu of a COLA in year two) violates both the province’s human rights legislation and s.15 of the Charter by discriminating on the basis of gender, family status and disability.
These bills were introduced and passed in two weeks, with the Conservative government using closure at each stage to limit debate. In an odd moment, opposition MLAs from the New Democratic, Liberal and ultra-right wing Wild Rose party all stood on the steps of the Alberta Legislature to condemn the bills.”
Thanks Bob. We will watch for the Charter challenge against these laws, coming to a court room near you in 2014.