Written by Professor Bob Barnetson, Athabasca University
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 Actis 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 mandatesto 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 panelon 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 right. 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, “How Alberta’s Bill 1 Constrains Workers’ Rights to Protest” Canadian Law of Work Forum (March 12 2020): https://lawofwork.ca/?p=11937