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Deputy minister testifies officials prepared anti-labour bill 'proactively' long before cabinet asked for it

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It's probably too much to hope the Alberta Union of Provincial Employees can persuade the Alberta Labour Relations Board the Redford Government had already decided to hammer the union into the ground with legislation while it pretended to negotiate a contract last year.

The union's argument in a Labour Relations Board hearing last week was that as direct employer of 21,000 civil servants, the government never negotiated in good faith as required by law during collective bargaining for a new AUPE contract because it knew Bill 46, the Public Service Salary Restraint Act, was available to impose a contract on AUPE.

For its part, the government contends it bargained in good faith, and that no one but a select group of government lawyers knew until the second week of October that a bill had already been proactively drafted in the spring.

Under the law governing civil service bargaining in Alberta, AUPE members employed directly by the government are not permitted to strike, but have had access since 1977 to binding arbitration by an impartial and independent arbitrator if a dispute cannot be resolved in bargaining. Bill 46, which became law on Dec. 11, retains the ban on strikes but deprives AUPE of access to arbitration.

AUPE negotiators contend they were confident they would have received a fair deal through arbitration and that the government, having reached the same conclusion, illegally bargained in bad faith because top officials knew Bill 46 had already been drafted to enforce the government's position.

At this point, by the way, the parties are still technically in bargaining -- with three more days of negotiations scheduled, starting today -- but the looming presence of Bill 46 means the union can now either take whatever the government offers or take even less when the bill is enforced and try to fight it in the courts.

Whatever the chances of succeeding with this line of argument, the first three days of legal maneuvering and testimony Wednesday to Friday at the bad-faith bargaining hearing in Edmonton may nevertheless pay dividends for the union in its struggle to win a sympathetic hearing from the media and public.

For starters, the refusal to testify by Premier Alison Redford, Finance Minister Doug Horner and former Human Services (now Advanced Education) Minister Dave Hancock hardly makes them look like courageous leaders of a government confident it is doing the right thing by taking away the union's right to have disputes settled by arbitration.

The timorous trio hid behind the government's lawyers, who trotted out the hoary doctrine of parliamentary privilege to argue successfully that as members of the Legislature the three could not be compelled to testify. 

Never mind a strong case can be made parliamentary privilege was created to protect parliamentarians from harassment by the monarch, not to avoid demands for information and fair treatment by the monarch’s subjects, but convention and tradition were clearly on the side of the government's clever lawyers.

Alas for the government itself, the political optics of this maneuver by champions of "transparency" in government like Ms. Redford may not be as strong as its legal case.

Indeed, it is said here the refusal of high elected officials to testify, and the nature of the law they refused to testify about, are a tacit admission the province's economic case against the union doesn't hold water. I suspect no amount of taxpayer-paid radio ads will keep that impression from growing over time.

The testimony of the only witness from the government to appear so far, moreover, was of a nature that would meet the approval of Premier Redford, who is known to admire a nice legal distinction, but might trouble ordinary voters untrained in the intricacies of the law.

Peter Watson, deputy minister of the Executive Council, is the most senior of senior civil servants. He is the government's top public employee, in charge of Premier Redford's own department.

Watson's principal evidence was submitted in the form of an affidavit. He was cross-examined most of the day Friday, however, by AUPE lawyer William Rigutto.

The thrust of Watson's testimony was that while it is true government lawyers were working proactively on the legislation by mid-April 2013, and had started thinking about legislative options in February, the government did not actually request Bill 46 to be drafted until Oct. 8, 2013, when a committee of cabinet ministers that oversees public service salaries made the request.

Watson also said in his affidavit that the Treasury Board -- headed by Horner, who has been declared immune from testifying -- gave the employer bargaining team only a broad mandate based on the government's fiscal policies, leaving plenty of scope for good faith bargaining.

As events unfolded, Watson testified, government lawyers were working on the legislation only "on a proactive basis, options that they anticipate the government might pursue in the future." The public service, he said in the document, often prepares draft legislation "on a speculative basis, even though it may ultimately not be pursued.”

"Bill 46 followed this pattern," Mr. Watson’s affidavit said. "Several civil servants were pulled together by Treasury Board and Finance in February 2013 to develop options around the then known government desire for fiscal restraint in public sector compensation. Based on wage restraint in other jurisdictions, the possibility of legislation respecting public sector compensation was one of the options discussed by this group."

In other words, although government employees were busy drafting the bill in the spring, there could have been no bargaining in bad faith because the elected officials didn't know about their work and only requested such a bill be prepared in October.

Moreover, Watson said under cross-examination, "I don't believe the direction was so hard and fast they (the government bargaining team) couldn't negotiate."

But cross-examined by Rigutto, Watson was unable to cast much additional illumination on the process of negotiations beyond the statements in his affidavit.

Many important meetings turned out not to have been attended by Watson, his testimony, which at times was almost inaudible, revealed. Many of those meetings were also conducted without a written record, he also testified. More than 40 times throughout the day, Watson indicated that he could not recall a detail, that his memory was fuzzy, or that he didn't know the specific answer to a question.

In some cases, as one would expect in a quasi-judicial proceeding of this type, counsel for the government objected to the union lawyer's question before Watson had an opportunity to answer -- as when Rigutto wondered if the witness was aware of similar legislation now being prepared to force other public sector unions that are banned from striking to accept deals an arbitrator would be unlikely to impose.

Watson's appearance as a witness had been the product of a compromise between the government lawyers and the union, which had subpoenaed seven people from the premier's office including Chief of Staff Farouk Adatia after the cabinet members successfully avoided testifying.

The parties agreed that as top civil servant in the public service, Watson should have the knowledge necessary to answer the union's questions, and the other subpoenas were withdrawn by AUPE.

At the end of the day Friday, when it was evident Watson was unable to answer many questions, the deal crumbled and the union indicated it wants to examine Alberta Public Service Commissioner Dwight Dibbin, who reports to Watson and who Watson named several times as the person likely to know things about negotiations he couldn't recall or hadn't been told about.

Dibbin is out of the country and, as a result, the hearing was adjourned and will resume at a date yet to be set.

Which allowed AUPE to end the day Friday, at least, by making its case to the media.

AUPE President Guy Smith compared the government's conduct in negotiations to that of a card cheat: "They had that ace up their sleeve … and they eventually played that card."

Rigutto told reporters: "They knew they were going to lose on this in arbitration and they decided to change the rules of the game and legislate."

The hearing also gave the union the opportunity to identify witnesses who knew what was going on who could be compelled to testify in AUPE's separate action challenging Bill 46 before the Alberta Court of Queen's Bench.

This post also appears on David Climenhaga's blog, Alberta Diary.

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