AUPE waits on anti-union Bill 46 ruling, Bill 45 still active

Photo: flickr/Lee Edwin Coursey

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In December, Alberta passed two bills, Bill 45 and Bill 46, restricting labour activities in the province. On Tuesday January 28, an Alberta judge issued a temporary stay on Bill 46 at the Court of Queen's Bench, after an appeal by Alberta Union of Public Employees (AUPE). The judge has until February 14 to decide whether to grant an indefinite stay.

The process of deciding whether Bill 46 is constitutional could take years to get through the courts, and AUPE lawyers have argued the bill should be stayed until the final decision is made.

For now, AUPE has two weeks where they will not be impacted by Bill 46. However Alberta labour leaders still remain concerned.

"Stunned" is the best way to describe how Alberta labour leaders felt when they found out in December 2013 that the provincial government was enacting Bill 45 and Bill 46, which would dramatically impact their union's abilities to strike or go to binding arbitration.

"When it came down it was a complete shock," said Guy Smith, the president of the AUPE.

Bill 45 would raise the fines, should a union go on illegal strike, from $1,000 a day to $250,000 a day. It would also make unions civilly liable for costs incurred to the employer during a strike and suspend union dues for a period of time depending on how long the strike lasted.

Bill 46 strips AUPE’s ability to go to binding arbitration and instead imposes wages on their union members should no new collective agreement be reached. The deal they would impose doesn’t have a wage increase until the third year of the agreement -- and even then, it’s only one per cent. 

The AUPE, along with United Nurses of Alberta (UNA), are challenging the bills in court, hoping to prove that both are unconstitutional. UNA and AUPE are challenging bill 45 and 46, respectively, under the section 2(d) -- freedom of association -- and section 2(b) -- freedom of expression -- of the Charter of Rights and Freedoms, hoping to prove that both are unconstitutional

This is just the latest in a long battle Alberta unions have had to wage where several years under a Conservative-led government have resulted in a number of stringent labour laws.

Under the Alberta Labour Relations Code and Public Service Employee Relations Act, provincial government employees, Alberta Health Services employees, ambulance operators, university staff and firefighters were already prohibited from striking. And, unions had faced fines for walking off the job illegally in the past.

Under Bill 45, the fines for illegal or wildcat strikes were dramatically increased. "If this legislation had been in effect in 1988 when we had a 19 day illegal strike it would have meant that a $50 million set of fines for the union, a two year suspension of our dues, every nurse who went out individually would have faced $60,000 in fines and our local leadership would have faced fines of about $190,000 each," said Heather Smith, the president of UNA.

The bill also fines anyone -- union member or not -- who counsels a government union member to engage in a strike. "There's a real smack of thought police stuff in that legislation that the public are really concerned about," said Guy.

While Bill 45's scope is wide, Bill 46's is narrowed in on the workers represented by AUPE -- social workers, correctional officers, sheriffs and many others who are considered "direct workers." While those workers haven't had the right to strike since 1977, they were able to proceed to binding arbitration should collective bargaining fail.

Bill 46 strips AUPE's ability to go to binding arbitration and instead imposes wages on their union members should no new collective agreement be reached. The deal they would impose doesn't have a wage increase until the third year of the agreement -- and even then, it's only one per cent.

There is some speculation that Bill 46 is just the beginning of a series of bills that could limit the ability of government workers to negotiate their collective agreements.

"The sense is that Bill 46 had AUPE's name on it -- Bill 47 is going to have UNA's name on it [and so on]," said Heather. "So its really important from our perspective that the unions in this province are not to be seen to be just waiting -- we need to start the challenges and indicate that this is just too outrageous."

"Under Bill 46 the government has basically…set the terms of the collective agreement," said E. Wayne Benedict, a lawyer with McGown Johnson in Calgary who specializes in labour law. "The government as legislators -- not as employers -- has taken away the ability for the parties to negotiate at all."

He thinks there is a chance that courts would find this to be a substantial interference in the procedural right to collectively bargain found under the freedom of association sections of the Charter of Rights and Freedoms.

But for now, while they have to battle the government both in and out of court, both UNA and AUPE have the support of the public, at the very least.

"We've been involved in a lot of scrapes with the government on various issues," said Guy. "I don't think I've ever seen the public more engaged or more aware."

But this battle could be a long one. Both AUPE and UNA are ready to go the distance with their respective claims, knowing full well that it could be five years or more before the cases make their way to the Supreme Court.

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Photo: flickr/Lee Edwin Coursey

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