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).
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.
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:
- There is a serious issue to be tried;
- Irreparable harm will result if an interim injunction is not granted and the Union is ultimately successful …;
- 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?
 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.
 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.
 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?