Written by Jason Foster & Bob Barnetson, Athabasca University
In summer 2020, the Alberta government under Jason Kenney passed Bill 32: The Restoring Balance in the Workplace Act. This omnibus bill made sweeping changes to the province’s labour relations and WCB regimes with the broad aim of Americanizing Alberta’s labour relations system. One of the more significant changes was to require union members to “opt-in” to union dues intended for so-called non-core activities. At passage, the scope of the opt-in provisions was unclear as regulations detailing the requirements had not been introduced.
The opt-in provisions of Bill 32 mirror a form of “right-to-work” law common in the United States. Under the Bill, unions are required to identify the proportion of dues used to fulfil “core” union activities (i.e., bargaining and collective agreement administration) and the percentage devoted to non-core activities. Members are only required to pay the core portion of dues and must elect to “opt-in” for the remainder. Note the bill sets the default at opting-out, meaning members must actively choose to have non-core dues deducted from their pay cheques.
The Bill identifies a list of activities as non-core, including donations to charities and non-profit organizations, funding for political organizations, and the ill-defined “general social causes and issues”. It also authorizes regulations to establish additional rules and to add to the list of non-core activities. Enactment of the opt-in provisions was delayed until the approval of regulations. The regulations were released on December 15, 2021 and take effect on August 1, 2022. There are three aspects of these regulations that warrant attention.
First, s.3(2) of the regulation extends the definition of non-core activities to include any other union activities that do not “directly benefit dues payers in the workplace”. The term “directly benefit dues payers in the workplace” is new and, thus, has not yet been subject to interpretation. Nevertheless, an initial reading of the regulation strongly suggests this criterion is intended to narrow the range of union activities considered core and thus subject to mandatory dues payments.
In practice, this means funding typical union activities, such as member and staff education, recruitment of new members, hiring halls, union administration, creating public awareness and lobbying, are all permissible without requiring members to opt-in. But these activities are only considered core if they directly benefit union members in the workplace. In other words, the regulation recognizes only “bread-and-butter” union activities as core.
Many commonplace union activities will now be subject to the opt-in requirement. For example, a union campaign advocating for an increase to the minimum wage is unlikely to be considered a “core” activity since union members are likely to be earning more than the minimum wage and, thus, will not directly benefit from the campaign in the workplace. Lobbying for improved EI benefits, funding research into privatization, and many other activities commonly engaged by unions on behalf of all workers will be relegated to non-core status. Other actions will exist in a grey zone. For example, is advocacy for stronger public health care by health care unions an activity that directly benefit dues payers in the workplace? Will lobbying for stronger occupational health and safety rules directly benefit dues payers?
This provision is concerning because it has the potential to drain significant resources away from these longtime union political activities. Much like U.S. right-to-work laws, Bill 32’s opt-in provisions are designed to reduce unions’ capacity to engage in political debate by choking off union funding. Specifically, unions will take in fewer dues and will have to expend more funds to get members to pay those dues every year.
Second, the regulation clarifies the rules around collecting affiliation dues for parent unions and labour centrals. Such payments are only considered core activities if “the trade union is able to demonstrate that the union dues, assessments or initiation fees have been or will be used by the other party for a core activity” (s.3(5)). This provision has the potential to destabilize the relationship between union locals and their parent union, labour councils, the federation of labour and the Canadian Labour Congress.
While many parent unions engage in core functions, (e.g., providing representational support, maintaining strike funds), labour centrals exist to pool unions’ resources for the purposes of broader political and social advocacy. Disaffiliating from labour central is an easy way for unions to reduce the amount of opt-in fees for which they must seek member consent. This will (and is likely intended to) weaken the labour movement as a whole and is consistent with other efforts by the Kenney government to restrict the political activities of the Alberta Federation of Labour.
The regulation also requires unions to provide members a list of “the persons or entities paid by the trade union” (s.4) to engage in non-core activities. While most unions regularly report such information in financial reports, the granularity required in the regulation is noteworthy. Unnecessarily adding to the regulatory burden faced unions mirrors the anti-union tactics of the federal Harper government (in which Kenney was a senior cabinet minister). In 2015, Bill C-377 added onerous union disclosure requirements to the Income Tax Act. This Act was repealed by the Trudeau government in 2017. This requirement also seems designed to allow union members to single out a cause or organization they don’t support as an excuse to opt-out of non-core dues.
The effect of the opt-in provisions will vary based upon how effective a union is in persuading members to choose full dues payment. It can be argued the provisions incentivize unions to become more effective at internal organizing, which could lead to stronger member engagement. This is possible. The U.S. experience, however, suggests even among the most organized unions, there is a measurable loss of revenue when members can opt out of all or a portion of union dues. Unions will need to divert internal resources away from so-called core labour-relations activities to maintain dues elections. An irony is the Kenney government has presented these changes as part of its it “red-tape reduction” efforts. Bill 32, however, creates significant additional red tape for unions and, particularly, employers who will have to change payroll systems to accommodate at least two levels of dues deduction due to opt-outs.
Unions are already threatening a response to the provisions, ranging from court challenges to defiance of the law. Alberta’s Court of Appeal has demonstrated an unwillingness to hear Charter challenges of the UCP’s labour laws absent a live case. This means any Charter challenge will likely require a union to ignore the new rules and be sanctioned by the Labour Board. Time will tell whether these union threats lead to any action. An alternative strategy for the unions might be to quietly ignore the rules (or minimally comply) and hope that the next Alberta government repeals this legislation.
What we do know is the opt-in provision will weaken unions’ ability to engage in advocacy that furthers workers’ interests, which provides a distinct advantage to employers to shape the policy agenda. The new regulation continues to prove the name of Bill 32 (The Restoring Balance in the Workplace Act) is a misnomer. It is clearly an act aimed at further tipping the balance toward employers.
J. Foster & B. Barnetson, “Bill 32 Regulations Continue Attack on Unions in Alberta” Canadian Law of Work Forum (January 5 2022): https://lawofwork.ca/albertaregs/