Legal Strikes Coming to the Alberta Public Sector18-Mar-16
Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services, was introduced in the Alberta Legislature on March 15, 2016. As the name suggests, it is the Alberta Government’s response to the Supreme Court of Canada’s decision in Saskatchewan Federation of Labour v. Saskatchewan. As we reported in February of last year, this decision reversed decades of law by finding that the right to strike is constitutionally protected under s. 2 of the Charter. However, it would be inaccurate to say that the SCC actually mandated this answer to its decision or that this was the only possible response to that decision.
Bill 4 would amend the Alberta Public Service Employee Relations Act and Labour Relations Code to provide most public sector workers with their first ever ability to take strike action as a means of resolving collective bargaining disputes. While municipal firefighters, police, and ambulance attendants will remain subject to compulsory interest arbitration as the only available means of resolving a bargaining impasse, other public service employees will be able to strike so long as adequate access to essential government services is maintained. Employers will have the corresponding right to lockout those employees designated as non-essential.
The legislation defines “essential services” in a narrow way. It only includes those services which cannot be interrupted without endangering the life, safety, or health of the public, or are necessary to maintaining public security or the rule of law. It also goes further than other legislation and prohibits the affected employers from using replacement workers or even volunteers to cover for striking workers unless the employer is able to obtain an exemption. In order to qualify for an exemption, employers will have to demonstrate that either:
- no bargaining unit employees perform essential services; or
- essential services can be maintained without reliance on replacement workers.
Therefore, the legislation will mean that many public services will be completely stopped by a strike. The public service includes many large bargaining units performing a variety of services. If some services performed by such a bargaining unit are deemed to be “essential”, and others not, the public may just have to suffer the inconvenience of going without the “nonessential” services. In some cases, that will of course entail more than just inconvenience because governments provide many services which, although they don’t fit the narrow definition of “essential”, are important for citizens.
The legislation will require essential services agreements to be negotiated between the relevant trade union and employer before any strike action is taken. Essential services agreements must detail such things as the specific services that will be maintained during a strike, the classifications of employees and number of positions required to perform the agreed upon essential services, how employees will be assigned to perform them, and the procedures to be followed in responding to both foreseeable changes and unforeseeable emergencies. Disagreements arising in the negotiation or application of essential services agreements will be resolved with the assistance of arms-length umpires and by a very powerful Essential Services Commissioner.
There may be changes to the legislation before it is eventually passed but, assuming this Bill remains largely intact, there are major changes coming to public sector collective bargaining. The dynamics of bargaining will profoundly change for those employers. Furthermore, every citizen who benefits from government services which do not fit the definition of “essential”, will be exposed to future interruptions of service due to strikes and lockouts.