Written by David Doorey, York University
We knew that Alberta’s United Conservative party would eventually get around to gutting labour laws and attacking unions. That process began yesterday. This is a very quick post, with more detailed commentary to follow in other posts on this blog.
With Bill 32, Restoring Balance in Alberta’s Workplace Act, 2020, the UCP becomes the first Canadian government to introduce laws modelled after the watered down version of Wagner Model in effect in the United States. The UCP had already re-introduced mandatory union ballots in last year’s Bill 2, An Act to Make Alberta Open for Business to replace the card-check model of counting support for collective bargaining. That change was designed to make it even more difficult for unions to organize new workers in what is already the least unionized province in Canada. Bill 32 goes much further in undermining the traditional Canadian model of collective bargaining in an effort to drag Canadian labour law downwards to the U.S. model. Think of Bill 32 as the canary in the coal mine. Other right wing governments, including those in Ontario, Saskatchewan, Manitoba, Nova Scotia, are paying close attention.
Note firstly that Alberta has now, and has for decades had easily the lowest unionizations levels of any jurisdiction in Canada. The following chart from my book The Law of Work shows recent figures. In the private sector, union density is near or below 10 percent. Alberta is as close to a non-union province as we have in Canada. The conservative elites’ relentless campaign to attack unions in Alberta borders on obsession, driven by a strong ideological bent and powerful anti-union corporate lobbyists. The odds of a private sector employer in Alberta being unionized are lower than anywhere else in Canada.
The most notable changes in Bill 32 relate to rules regulating unions dues and picketing. As I noted in this post from about a year ago which I wrote for Harvard Law School’s OnLabor blog, the UCP announced in its election platform that it intended to introduce a U.S. “Janus” style obligation on unionized workers to “opt into” the share of union dues that unions devote to what the UCP described as activities not related to the Labour Code. So this part of Bill 32 is not a surprise.
How the line will be drawn between Labour Code activities and non-Labour Code activities will no doubt spur years of litigation. Here is what Bill 32 says on that front:
This law is aimed at bogging down unions in red tape (which is funny because Alberta has a “Red Tape Reduction Minister”… seriously… who was there yesterday bragging about how Bill 32 reduces red tape!), since they are now required to tabulate, categorize, and constantly report on the division of costs as defined in vaguely worded statutes. More importantly, the UCP hopes that a lot of union members will opt out of paying part of their dues which will strain resources available for unions to participate in public discourse. I have doubts that the law will have a significant impact on union resources, but the law is no doubt an irritant that will create boon for labour lawyers who will have years of litigation trying to figure out what it all means.
That litigation will also almost certainly involves more Charter litigation. The union dues opt-in law will probably lead to a revisitation of the Lavigne v. Ontario Public Service Employees Union decision from 1991, which upheld the right of unions to spend union dues on “political activities”. Justice Wilson famously wrote in that case:
Because drawing a distinction between collective bargaining and politics is so difficult it will always be debatable whether a union has “crossed the line” in contributing its dues to certain purposes. And where there is room for reasonable disagreement over the propriety of union spending there is bound to be litigation. In my view, nothing could be more incompatible with the promotion of collective bargaining. Since the ultimate aim of the system is to encourage the parties to settle their own disputes, any ruling which will encourage the parties to rush off to court is clearly counter‑productive… In summary, it seems to me that placing restrictions upon the way in which unions may spend their dues will lead to interminable problems and jeopardize the important government objective at stake in this appeal.
Justice Bertha Wilson, Lavigne v. OPSUE, 1991
The UCP law requiring that workers opt-into dues is a different law than the one which was at issue in Lavigne, which simply required all employees to pay dues (Rand Formula) and left it to the union leadership to decide how those dues were spent. It will be interesting to see whether the new, arguably more robust freedom of association model developed by the SCC since 1991 will deal with legislation that reaches deep into the internal decisions of employee associations.
Another rule found in Bill 32 that is almost certain to be the subject of a Charter challenge restricts where and when workers can engage in peaceful picketing. A new provision requires unions to first obtain Labour Board approval to engage in secondary picketing. British Columbia has a similar model, and I believe (can anyone confirm this?), that law is the subject of a Charter challenge right now but I am not sure where the case sits. All laws that proscribe the right of workers to engage in peaceful picketing, regardless of location, are now constitutionally suspect as potential infringements of either or both freedom of association or expression. So watch for a multi-pronged Charter challenge against Bill 32 moving forward.
Bill 32 also includes additional little one-sided gifts to employers that have nothing to do with undermining unions. For example, a new law will permit employers to impose averaging agreements on employees against the employee’s wishes, which means in practice that employers can schedule work so as to ensure that they can avoid paying overtime pay. It is hard to imagine that a single employee in Alberta asked for a law denying them overtime pay, so it’s pretty clear this one is a straight up gift the employer lobby. You’d think with huge unemployment that a government would want to encourage less overtime and more hiring, but that is not a perspective the UCP sees looking exclusively through an employers’ lens.
So Bill 32 swings the pendulum very far to the right despite the now ubiquitous claim the law is intended to “restore balance”. Expect more Charter challenges and lots of protests. The Canadian Law of Work Forum will have more commentary on Bill 32 in the coming days, so check back.
David Doorey, “Alberta Imports Right-Wing Republican Inspired Labour Laws” Canadian Law of Work Forum (July 8 2020): https://lawofwork.ca/?p=12847
