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Big changes coming to academic faculty, graduate student and postdoctoral bargaining rights in Alberta

Alberta labour lawyer Andrew Sims (David Climenhaga photo)

Significant charges are coming to the rights of academic staff at post-secondary institutions in Alberta, including tenured faculty, to bargain collectively.

Right-wing opposition politicians are likely to claim the changes are Premier Rachel Notley's NDP government doing favours for friends in the union movement. But if conservative politicians make this claim, they will be lying -- there really is no other word for it, since they know the truth as well as the government does -- and crossing their fingers that their supporters and Albertans who are sitting on the fence won't know any better.

In fact -- literally in fact, not merely a turn of phrase -- the most significant change in faculty association collective bargaining, the right to strike that will likely come into force as soon as Bill 7 is passed and receives Royal Assent, is the direct result of a Supreme Court of Canada decision in January 2015.

"Today's bill would bring about the transition, for post-secondary education, to the free collective bargaining called for by the Supreme Court," said respected labour lawyer and mediator Andrew Sims, who led a consultation with education stakeholders last year, in the government's announcement of the Act to Enhance Post-Secondary Academic Bargaining when it was introduced late last week.

"Our government is committed to complying with the Supreme Court of Canada decision that guaranteed Canadian workers the right to strike while maintaining essential public services," said Advanced Education Minister Marlin Schmidt in the same release. (Emphasis added.) "This legislation will ensure that labour relations at Alberta’s colleges and universities are consistent with the rest of Alberta's public sector and with the post-secondary sector across Canada."

Under legislation passed by various generations of the Progressive Conservative Dynasty, strikes by essentially all public employees were illegal -- a pretty obvious human rights violation, although one popular with many voters.

Faculty Associations in Alberta came under the Post-Secondary Learning Act, legislation that additionally took away their freedom-of-association rights by not allowing them to pick the union they wanted to represent them in collective bargaining. They could bargain collectively if they wished, but only on their own as a single-institution faculty association -- without the financial and technical support that is inherent in being part of a larger union.

Once Bill 7 is passed, faculty will come under the Alberta Labour Code -- although with a caveat, that their faculty association’s right to represent them will be frozen for five years, after which according to the interpretation of ministry officials they will be able to seek representation by other, possibly more effective unions if they wish.

Needless to say, this is a highly significant change in an era when universities throughout Canada have controlled their labour costs by creating an unfair two-tier system of faculty in which a small number of tenured professors enjoy high pay and rich benefits and a large number of itinerant instructors do most of the work in precarious circumstances for low pay and few or no benefits.

The new legislation will impact faculty associations, graduate students and postdoctoral fellows, the government's news release notes. Amending both the Post-secondary Learning Act and the Labour Relations Code to bring these workers -- and I use that term advisedly -- under the Code will:

  • Mean graduate students' associations as well as academic staff associations have the right to strike
  • Create postdoctoral fellows' associations and extend the right to strike to their members
  • Give post-secondary institutions the right to lock out their academic employees (let's see how well that goes over with fee-paying students and their taxpaying parents!)
  • Require post-secondary institutions to negotiate essential services agreements with their academic employees' bargaining organizations
  • End the use of compulsory arbitration in which contracts and costs are determined by an arbitrator

It's worth asking if over time this approach, which is likely to be adopted in other provinces for the same reasons, could lead to the creation of an Academic Faculty Union of Canada? It seems to me such a project would be worth the effort for the resulting acronym alone!

Levity aside, I suppose a government could futz around and pretend the Supreme Court didn't have all working people in mind when it ruled that all working people have the right to bargain collectively, including the right to strike, but they would be wasting their breath and taxpayers' money.

Short of using the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms -- a politically risky strategy, as intended by the drafters of Canada's 1982 Constitution -- such an effort would be doomed to failure in the courts. Likewise, it is said here, trying to restrict the freedom-of-association right of faculty members to be represented by whatever union they choose would likely suffer the same fate.

This is why any politician who says she or he would repeal every single law passed by a previous government is either a liar or a fool, whether or not the air-conditioning in the Legislature happened to be operating at the time.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

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