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Stripping Collective Bargaining Rights Causes Irreparable Harm, Alberta Judge Rules

by David Doorey February 19, 2014
written by David Doorey February 19, 2014
Government attacks on collective bargaining rights of its employees in Alberta and B.C. have
Premier Redford's Attempts to Strip Collective Bargaining Hits Roadblock

Premier Redford’s Attempts to Strip Collective Bargaining Hits Roadblock


run into judicial road blocks in recent weeks.  I summarized the case from B.C. recently, in which a judge chastised the B.C. Liberals for violating teachers’ Charter rights and by trying to provoke a strike to win political points. The government was ordered to pay $2 million in damages, and the legislation stripping collective agreement terms was struck down as unlawful.
Facts and Issues in the Alberta Decision
Now an Alberta judge has issued an injunction preventing the implementation of the controversial Public Service Salary Restraint Act (PSSRA).

Here is the Court’s decision.

The PSSRA blocked access to the normal dispute resolution process [the CAB], implemented the terms of an expired 2011 collective agreement for a period of 4 years, and froze the wages of 24,000 Alberta public sector employees for 2 years, and imposed a modest 1% increase in pay per year from 2015 to 2017.  The Union (AUPE) brought an application for an injunction to stop the Act from coming into effect until after the Charter challenge is decided some time in the future.
The Court agreed with the Union and issued the injunction, with the result that legislation cannot be implemented, and the CAB process is to move forward.  However, the Union had agreed that if the CAB process results in wage increases, those raises wouldn’t come into effect until after the Charter challenge is decided.
The Harm Caused by Legislation that Strips Collective Bargaining Rights
An interesting twist in this case is the judge’s reliance on an expert affidavit from a former collective bargaining professional named John Fryer.  Fryer testified that when governments interfere in free collective bargaining by legislating terms, they cause all sorts of labour relations problems that persist over time, and harm to the union.  These problems include the following:

1. communicates that bargaining efforts are irrelevant;

2. discourages creative bargaining attempts as these are a waste of time and effort when government intervention is a possibility;

3. undermines the role of unions and union representation to speak for union members;

4. undermines the confidence union members have in their leadership during contract negotiations but also in other processes where unions assist in employee/employer interactions, such as grievance arbitrations; and

5. causes workers to feel powerless, and engage in alternative and potentially inappropriate steps to push back against employer control.

The judge accepts these conclusions and relies on them to ground the injunction.  These are conclusions that labour law profs like me and industrial relations scholars have long recognized and written about. However, it is great to have a judge accept them as facts in a legal proceeding.  Great work by John Fryer and the AUPE lawyers.

Here is John Fryer’s Affidavit, in case you are interested.

Test for Granting an Injunction
The Judge applies the well known test for granting an injunction set out in the 1994 SCC case RJR MacDonald v. Canada:

In order to succeed in an application for an interim injunction, the Union must establish the following:

  1. There is a serious issue to be tried;
  2. Irreparable harm will result if an interim injunction is not granted and the Union is ultimately successful …;
  3. The balance of convenience favours granting the injunction.

The Judges walks through each step.  I’ve pulled out the key quotes from each part to give you a flavour for the reasoning.
1.   Does the Application Raise a Serious Issue?

“The effective extinction of AUPE’s capacity to engage in collective bargaining and the indicia of bad faith negotiation by Alberta each qualify as a basis to meet the serious issue criterion of the RJR – MacDonald three-part test. “

2.   Would the AUPE Suffer Irreparable Harm if the Injunction is Not Granted?

[81] I have admitted and accepted the expert opinion evidence from Professor Fryer, which indicates that the operation of the PSSRA causes ongoing injury to the relationship between the AUPE and its membership, affects the morale and workplace conduct of AUPE members affected by that legislation, and that the PSSRA will impede future collective bargaining between AUPE and Alberta.

[82] In coming to that conclusion I am particularly struck by the unique and broad operation of the PSSRA. This legislation dictates the terms of an entire workplace employment arrangement without any input by the employees through their statutory bargaining agent AUPE. The scope and duration of this impact amplifies the deleterious effects of unilateral legislative control identified by Professor Fryer.

[83] The proposed injunction will enable the CAB to continue the arbitration process. I accept the arguments that a delay in that process has two negative effects:

1. “labour relations delayed is labour relations denied”, and

2. delay in the arbitration process provided for by legislation compromises the relationship between the AUPE and its membership.

3.  Does the Balance of Convenience Favour Granting the Injunction?

I must proceed on the assumption that the PSSRA is directed to the public good and serves a valid public purpose. The assumption of a public interest is met by this law’s unimpeded operation and that must weigh heavily in the balance.

Absent a stay, as of March 31, 2014 this legislation imposes the rather stale 2011 Collective Agreement on the members of the Crown bargaining unit, with existing wage rates capped for the first two years at zero and a very modest increase for the last two years of the contract. The effect is much more than a salary cap, instead it freezes all of the other non-monetary features of the relationship as well. In addition, it guts the bargaining process by removing any effective leverage on the part of the workers who, as a result of other provincial laws, cannot withdraw their labour. The effect of this legislation is to emasculate the AUPE, which in turn results in the harms identified by Professor Fryer.

I do not see the Applicants arguments as “weak”, especially given the focus of the legislation and its effects on the rights of one particular group of Albertans and public servants, namely the employees who form the Crown bargaining unit. Rather, I see the claims as representing a “clear” case of a Charter breach…

Check out the funny Editorial Cartoon on the case from the Edmonton Journal (click the Tuesday February 18th link)
Issues for Discussion
1.     This Alberta decision is another in a long series of cases in which Canadian governments have sought recently to legislate terms of collective agreements, rather than reach bargained solutions or allow interest arbitration to resolve the disputes.  Should governments be able to legislate collective agreements rather than have them determined through free bargaining or neutral arbitration?
2.   What do you think of John Fryer’s expert evidence about the harm caused to labour relations and unions of unilateral government imposition of collective agreements?  Should this harm be recognized by courts?

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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RSandillRicha Sandill@RSandill·
24 Feb

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

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TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
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