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Valentine's Day injunction all but massacres Alberta government credibility in fight with union

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Guy Smith

Mr. Justice Denny Thomas of the Alberta Court of Queen's Bench did not merely accept the arguments of the Alberta Union of Provincial Employees when he slapped an injunction on the Government of Alberta yesterday, indefinitely suspending a law that could have forced 22,000 civil servants to live with a contract imposed on them by legislative fiat.

He delivered a withering denunciation of what his ruling suggested was the deceptive, dictatorial, and dishonourable way the government of Premier Alison Redford did business with its public employees and their union.

The Canadian Press's characterization yesterday of the judge's ruling as excoriating the government is not too strong.

There is no need to add hyperbolic commentary -- it's enough to read the 23-page judgment for yourself: "My analysis of the evidence presented here raises the issue that Alberta did not meet its obligation to bargain in good faith," Justice Thomas stated in his Valentine’s Day decision, which all but massacred what’s left of the government's political credibility. (Emphasis added.)

"The timeline and events prior to consideration and passage of Bill 46 are interpreted by me to conclude Alberta never intended that the 2013 negotiations with AUPE were to be meaningful," the judge continued on page 15 of his decision.

"What is particularly concerning is the uncontested fact that Alberta and AUPE had come to meaningful agreements on certain issues during collective bargaining, but rather than respecting those points of common ground Alberta has by legislation 'wiped the slate clean' when it unilaterally imposed all terms from the 2011 Collective Agreement," the judge said.

"This raises the question of whether those negotiations were ever conducted in good faith, or were merely camouflage for a different agenda," Justice Thomas went on. "The duration of this 'backtracking' is also considerable; the Government of Alberta arguably reneged on four years of an agreed mutual relationship." (Emphasis again added.)

The different agenda, political observers have suggested, was ensuring AUPE didn't get a pay raise in arbitration -- which since arbitrators are independent, and impartial, was not just a possibility, but a likelihood.

Nor did Justice Thomas seem impressed with the government's case in other regards. "The complaint by Alberta that AUPE is being 'political,' as evidenced by allegedly scurrilous attacks contained in Union publications, is not an argument to which I give any weight," he wrote on page 21. "The statements in the AUPE publication are what they are, namely rhetorical flourishes which are often found in house publications. I am surprised that Alberta would advocate this sort of material as representing a relevant factor in this weighing exercise. …"

Elsewhere, on page 7, after summarizing affidavit evidence presented for the union by Prof. John Fryer of the University of Victoria and AUPE Negotiator Dale Perry, the judge says of affidavit evidence filed in response by the government's lawyers: “John DeCesare … is an articling student at McLennan Ross, the law firm representing Alberta. He visited a number of websites, including the AUPE website and attaches copies of screen shots to his Affidavit. Otherwise, the Respondent offered no evidence to refute the evidence of Professor Fryer and Perry." (End of passage.)

In seeking the injunction, AUPE asked the court to suspend application of Bill 46, known as the Public Service Salary Restraint Act, passed on Dec. 11, until the union's constitutional argument that the Act violates its members' rights under the Canadian Charter of Rights and Freedoms is considered by the courts -- a process that could take years.

With a deadline in the act for imposition of a contract at the end of March, that's a big political problem for the government.

Justice Thomas obviously concluded the union's arguments have a chance of success, writing on page 20 that the legislation "guts the bargaining process by removing an 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. … This evidence has not been refuted by either Alberta or the Minister."

Naturally, AUPE's leadership was delighted by yesterday’s turn of events -- which can hardly be seen as a bad omen for the prospects of the union's constitutional case.

The injunction restores the right of AUPE members to collective bargaining and arbitration to resolve any impasse reached in bargaining while their union argues in the courts for the legislation to be rescinded.

"We are prepared to take our challenge to the Supreme Court of Canada if necessary, so it's important our members rights are protected while that process unfolds," said AUPE President Guy Smith during a lunch hour news conference at AUPE's headquarters in West Edmonton.

Smith told journalists the union would continue efforts to reach a contract with the government on two tracks -- negotiating in good faith but also applying to resume the arbitration process that had already begun when the government passed Bill 46 on Dec. 11.

"We will be negotiating on a level playing field with a fair process in  place to reach a fair agreement," he said.

There can be no doubt this development puts additional pressure on the government, whose high-handed legislation has become an increasing embarrassment, to find a deal acceptable to all parties in bargaining.

It is reasonable to ask now how such a strongly worded ruling by an independent and impartial judge of a superior court could fail to damage, possibly quite seriously, the credibility of Redford Government -- and especially Labour Minister Thomas Lukaszuk.

Even among voters who are not particularly sympathetic to unions, this is bound to raise doubts about both the government's competence and its trustworthiness. After all, what is done to one group of people can be done to another.

Not surprisingly, the government appeared to be on the run in the aftermath of yesterday's ruling.

Lukaszuk -- widely believed to be the prime mover in the government effort to draft and pass the Public Service Salary Restraint Act and its companion legislation, Bill 45, the still un-proclaimed Public Sector Services Continuation Act -- was nowhere to be found.

Instead, the government's reliable old Queen's Counsel, Deputy Premier Dave Hancock, agreed to speak with reporters, then changed his mind (or had it changed for him) and sent them an email.

There will be an appeal of the judge's ruling, the email vowed. No questions will be entertained, however, thank you very much.

It is said here the government would be smarter to gracefully accept the terms of the injunction and concentrate its legal efforts on defending the dubious constitutionality of its law. But as the Good Book says, "pride goeth before destruction, and an haughty spirit before a fall," so don’t count on it.

This government’s actions, more likely, will continue to poison its relationship with its employees and their union.

AUPE's Smith promised yesterday to seek opportunities to rebuild bridges to the government -- but wondered if Bill 46 "is a bridge too far."

Then again, with this government's demonstrated capacity to shoot itself in both feet and an election looming for the spring of 2016, maybe it's really a bridge to nowhere!

Next: Can Labour Minister Thomas Lukaszuk's political career survive Mr. Justice Denny Thomas's ruling? This post also appears on David Climenhaga's blog, Alberta Diary.

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