Allegations: The complainant organization alleges that the Government of Alberta
adopted the Public Sector Services Continuation Act (Bill 45) with the intent to further
limit collective rights of public sector employees in the province
- 184. The complaint is contained in a communication dated 13 February 2014
from the National Union of Public and General Employees (NUPGE) on behalf of its Alberta
component – the Health Sciences Association of Alberta (HSAA/NUPGE). Public Service
International (PSI), the Canadian Labour Congress (CLC) and the Alberta Federation of
Labour (AFL) associated themselves with the complaint in communications dated 20
February and 9 April 2014.
- 185. The Government of Canada transmitted observations of the government
of Alberta in a communication received by the Office on 22 January 2015.
- 186. Canada has ratified the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise
and Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
A. The complainant’s allegations- 187. In its communication dated 13 February 2014, the NUPGE explains that
it is one of Canada’s largest unions with over 340,000 members and that HSAA, its
component in Alberta, represents 25,000 paramedical technical, paramedical professional
and general support employees in more than 240 disciplines. These workers are employed
in the public and private health-care sectors in Alberta. Almost all belong to a
province-wide bargaining unit, are covered by one collective agreement and are governed
by the Labour Relations Code (LRC), which like the Public Service Relations Act (PSERA),
prohibits employees in the health-care sector from striking.
- 188. The NUPGE explains that its complaint concerns the Public Sector
Services Continuation Act (Bill 45). The complainant further seeks to have the Committee
re-examine the strike restrictions imposed on about 200,000 public sector employees in
Alberta.
- 189. The NUPGE explains that the Bill was introduced by the government in
the Alberta legislative assembly on 27 November 2013 with less than one-day notice and
without consultation with the HSAA or any other unions impacted by the legislation. The
only prior notice of this Bill came on 26 November 2013, when the Minister of Human
Resources introduced a motion to limit debate and enforce closure, even before the Bill
has been tabled and seen by members of the legislature. The Act was rammed through the
legislature with little debate and passed on 4 December 2013.
- 190. According to the NUPGE, the Public Sector Services Continuation Act
(Bill 45) places further restrictions on some 200,000 unionized public sector employees
in Alberta who were already denied the right to strike, and broadens the definition of a
strike to include “any slowdown or any activity that has the effect of restricting or
disrupting production or services”. The union further alleges that the Act alters the
definition of “strike” by removing the requirement that the intent behind any strike
activity is to compel terms and conditions of employment through withholding of work or
services. According to the complainant, it also denies individuals the fundamental right
to freedom of expression by introducing for the first time in Canada a vague legal
concept of “strike threat”, which makes it illegal to canvass the opinion of “employees
to determine whether they wish to strike”, or for an individual to freely express a view
that calls for or supports strike action. The union claims that even those who are not
directly involved with the union, like academics or public policy commentators, could be
prosecuted for suggesting that a strike is the only means to protect the public interest
or to draw attention to unsafe working conditions that put the health workers and the
general public at risk.
- 191. The NUPGE alleges that the Act imposes “draconian” fines on unions,
their members and even on citizens unrelated to the unions, who encourage or support an
“illegal strike” or “strike threat”. In this respect, according to the union:
- –
section 6(1) and (2) provides for an automatic minimum of three months’ suspension
of union dues of the entire bargaining unit for the first day or partial day that a
strike or strike threat occurs, and an additional one-month dues suspension for each
“day or partial day” of a strike or strike threat;
- – section 9(8) provides
for 1 million Canadian dollars (CAD) to be paid in Court under an abatement order
for each day that the strike or strike threat occurs, without providing for any
maximum amount; and
- – section 18(1)(a)(i) and (ii), provides for a fine of
CAD250,000 plus CAD50 for each day of a strike multiplied by the number of employees
involved in the strike.
- 192. According to the complainant, these fines will be imposed regardless
of whether the union actually knew of, caused, counselled, or consented to the strike or
strike threat. They will also be imposed regardless of whether the union had any control
over the employees involved in a strike or strike threat, or how many employees were
engaged in a strike or strike threat. The NUPGE adds that the Act imposes a reverse onus
on HSAA, or other union, if it wishes to challenge the penalties. A union must first
satisfy the Labour Relations Board (LRB) that it gave express instructions against a
strike or a strike threat before the strike or strike threat happened (section 6(3)(a)),
which means that the union has to prove that it had given an advance notice against
strike action or making a strike threat regardless of whether it knew of, caused,
counselled, or consented to the strike or strike threat. According to the NUPGE, this
makes it effectively impossible for the union to avoid the minimum three-month dues
suspensions in situations of an illegal strike or other unauthorized strike or strike
threat. It further makes a union liable for the actions of non-members who engage in an
unauthorized strike or strike threat, and effectively confiscates its funds by holding
them in a “liability fund” for up to two years before the employers are even required to
make an application to Court for judgment against a union for a strike or strike threat,
regardless of whether it knew of, caused, counselled, or consented to the strike or
strike threat, or had any advance notice of the strike or strike threat (section 11(3)).
The NUPGE further argues that the Act automatically imposes personal fines on union
officers or representatives and the individual bargaining unit employees, even if they
had advised bargaining unit members not to refuse work, or not to stop working. If the
LRB determines that a strike has occurred, the union officers and representatives would
still be subject to fines even if the refusal to work or to continue working are
undertaken by the members in order to comply with their legal obligations under the
Occupational Health and Safety Act and/or the Health Discipline Act.
- 193. It further indicates that, on 8 January 2014, a constitutional
challenge in the Alberta Court of Queen’s Bench was lodged against the Act arguing that
it violates Canada’s Charter of Rights and Freedoms by denying its members’ right to
freedom of expression, freedom of association, liberty and fundamental principles of
justice.
- 194. The NUPGE alleges that even prior to the introduction of Bill 45,
public sector labour relations in Alberta were governed by two of the most restrictive
collective bargaining laws in Canada: the PSERA (1977) which governs the collective
bargaining process for some 60,000 unionized provincial government employees, and the
LRC (2000), which governs the collective bargaining process for the other 100,000
unionized public sector employees not covered by the PSERA. The complainant recalls that
almost all of the HSAA’s members are covered by the LRC.
- 195. With regard to the PSERA, the complainant considers the following
provisions to be restrictive for the reasons it outlines below:
- – section 70, as
it prohibits public employees (the majority of which, according to the union, do not
provide essential services) and their unions from participating in a strike or
causing a strike;
- – part 6, division 2, pursuant to which, if the outcome of
the collective bargaining process does not reach a negotiated settlement on terms
and conditions of employment, the only dispute resolution mechanism available to
unionized public sector employees is compulsory arbitration;
- – section 69,
because it allows employers to suspend for up to six months the deduction and
remittance of union dues, assessments, or other fees payable to the union, if the
members of the union participate in an illegal strike; and
- – section 71,
which provides for penalties imposed on any union officer, or representative of a
union (up to $10,000), or any other person, who causes a strike (up to $1,000 a day
for each day the strike continues).
- 196. With regard to the LRC, the NUPGE considers that, the following
provisions are restrictive for the reasons it outlines below:
- – part 2, division
16, because it prohibits health care workers not covered by the PSERA from
participating in a strike or causing a strike (the majority of which, according to
the union, do not provide essential services);
- – section 97, as it makes
compulsory arbitration the only dispute resolution mechanism available to unionized
public sector employees;
- – section 114, as it gives the LRB the authority to
direct an employer to suspend the deduction and remittance of union dues for up to
six months from employees covered by section 96 who have participated in a
strike;
- – section 116, as it gives the government the authority to direct
the LRB to revoke the certification of a union that causes or participates in a
strike; and
- – section 160, because it establishes penalties identical to
those contained in section 70 of the PSERA for any union officer or representative
or any other person who causes or attempts to cause a strike.
- 197. With regard to both pieces of legislation the NUPGE refers to Cases
Nos 893, (examined by the Committee in its Report No. 187, November 1978), and 1234 and
1247 (examined by the Committee in its Report No. 241, November 1985) dealing with the
PSERA and the Labour Relations Act (predecessor of the LRC). The complainant requests
the Committee, in dealing with this complaint, to take into account these cases and the
failure of successive governments to act on the recommendations of the ILO Governing
Body.
B. The Government’s reply
B. The Government’s reply- 198. In a communication received by the Office on 22 January 2015, the
Government of Canada submits an interim response on behalf of the government of Alberta.
The government of Alberta indicates that Bill 45 has not been proclaimed in force as
this legislation is currently subject to litigation before the Alberta courts.
- 199. The government of Alberta explains that the LRC and the PSERA
contain measures to hold unions and individuals who break the law accountable. However,
the government of Alberta’s past experiences with illegal strikes in the public sector
indicated a further need to deter and halt illegal strike activity. Bill 45 would apply
to unionized public sector workers in Alberta who are already prohibited from striking
under the LRC and PSERA. The legislation was introduced to help ensure the continuation
of public services by further deterring illegal strikes that have the potential to
seriously impact the health and safety of Albertans.
- 200. The government of Alberta considers that the NUPGE analysis of Bill
45 misstates what Bill 45 means and does. While the government of Alberta understands
that the Committee on Freedom of Association is free to reach its own conclusions
regarding whether Bill 45 violates Convention No. 87, it considers that the Committee’s
reasoning must be based on how Bill 45 is understood under domestic law. In particular,
unlike the LRC, but similar to the PSERA and to many other labour relations statutes
across Canada, Bill 45 does not require that a “strike” be specifically directed at
obtaining better terms and conditions of employment, but extends as well to a concerted
withdrawal of labour that is designed to achieve goals unrelated to collective
bargaining, such as political strikes. It does not follow from this, as the NUPGE
claims, that this expanded definition could prevent employees from complying with other
statutory and legal obligations including the right to refuse to perform unsafe work as
provided for in Alberta’s Occupational Health and Safety Act, or avoiding actions or
inactions that would result in unprofessional conduct under Alberta’s Health Professions
Act. While a refusal to work or a diminution of services may constitute unprofessional
conduct, actions or inactions genuinely taken in order to comply with professional
responsibilities do not constitute a strike. Nor does a genuine refusal to perform
unsafe work. For these reasons, the government of Alberta disagrees with the
interpretation asserted by the NUPGE.
- 201. The government of Alberta further considers that there is nothing
vague or novel about Bill 45’s definition of “strike threat”. Particularly in health
care, a credible threat of a strike may have effects as great as an actual strike –
alternative arrangements need to be made to assure patient care, and patients may have
to be moved out of province. Furthermore, throughout Canada bargaining agents are
responsible to not, variously “counsel”, “procure”, “support”, “authorize” or
“encourage” unlawful strikes in their bargaining units, and may be liable if they do not
make all reasonable efforts to bring a strike to an end. It further refutes the
allegation that Bill 45 renders a union responsible for a strike or strike threat
“regardless of whether the union actually knew of, caused, counselled, or consented to
the strike or strike threat”, or “regardless of whether the union had any control over
the employees involved in a strike or strike threat”. A union may avoid penalties if it
expressly and consistently repudiates strikes and strike threats as a means for
bargaining unit employees to achieve workplace or other goals and if it does not
encourage a particular strike or strike threat. Bill 45 creates a regime of strict (not
absolute) responsibility for bargaining agents for strikes and strike threats in a
bargaining unit.
- 202. The government of Alberta points out that, given that Bill 45 is not
in force and is the subject of domestic litigation, it is continuing in its process of
review. It intends to provide further information to the Committee within a reasonable
period of time.
C. The Committee’s conclusions
C. The Committee’s conclusions- 203. The Committee notes that the allegations in this case, submitted by
the NUPGE in a communication dated 13 February 2014, relate to the adoption, in December
2013, of the Public Sector Services Continuation Act (Bill 45). The Committee notes that
according to the complainant, this piece of legislation was adopted without prior
consultation with the workers’ organizations. This appears to be supported by the
evidence submitted by the complainant and is not refuted by the Government. In this
respect, the Committee, on a number of occasions, has emphasized the value of consulting
organizations of employers and workers during the preparation and application of
legislation which affects their interests. It considered, in particular, that it was
essential that the introduction of draft legislation affecting collective bargaining or
conditions of employment should be preceded by full and detailed consultations with the
appropriate organizations of workers and employers [see Digest of decisions and
principles of the Freedom of Association Committee, fifth (revised) edition, 2006,
paras 1072 and 1075]. The Committee expects that in the future, the Government will
engage, at an early stage of the process, in full and frank consultations with the
relevant workers’ and employers’ organizations on any questions or proposed legislation
affecting trade union rights so as to permit the attainment of mutually acceptable
solutions.
- 204. The Committee notes that according to the NUPGE, this Bill 45 places
further restrictions on unionized public sector employees in Alberta, who were already
denied their right to strike either under the PSERA or the LRC.
- 205. The Committee observes that pursuant to its section 1(1)(f), Bill 45
applies to the employees to whom division 16 of part 2 of the LRC applies, as well as to
employees covered by the PSERA. Whereas the latter governs public service, government
agencies and Crown corporations of Alberta (with the exception of bodies listed in a
schedule to the PSERA), the former applies to firefighters, all employees of approved
hospitals as defined in the Hospitals Act, as well as employees of the regional health
authorities and ambulance attendants as defined in the Emergency Health Services Act
(section 96(1) of the LRC).
- 206. Pursuant to section 96(2) of the LRC, no employees or trade union to
which division 16 of part 2 applies shall strike, cause a strike or threaten to cause a
strike. Section 70 of the PSERA prohibits strikes (causing, attempting to cause or
consenting to strikes) in the public services and instead establishes compulsory binding
arbitration as the method of resolving collective bargaining disputes (part 6, division
2).
- 207. The Committee notes that in its section 4, Bill 45 reaffirms that:
(1) no employee and no trade union or officer or representative of a trade union shall
cause or consent to a strike; (2) no employee and no officer or representative of a
trade union shall engage in or continue to engage in any conduct that constitutes a
strike threat or a strike; and (3) no trade union shall engage in or continue to engage
in any conduct that constitutes a strike threat.
- 208. With regard to various sanctions for strike action provided by Bill
45, the Committee notes that pursuant to section 6, in the case of a strike threat or a
strike, deduction from payroll of union dues, assessments and other fees that would
otherwise be payable by employees in the bargaining unit, and their remittance to the
trade union concerned shall be suspended by the employer for a period of three months
for the first day or partial day on which the strike threat or strike occurs, plus one
additional month for each additional day or partial day on which the strike threat or
strike continues unless the union satisfies the LRB that the strike threat or strike
occurred against the express instructions of the trade union given before the strike
threat or strike began; that all the actions of the trade union and its officers and
representatives have been consistent with those express instructions since the
instructions were given, and that neither the trade union nor any of its officers or
representatives has contravened section 4 of Bill 45 in respect of the strike threat or
strike.
- 209. In addition, pursuant to section 9 of Bill 45, where, on an
originating application made by the minister, an employer or an authorized person, the
court is satisfied that a strike threat or a strike has occurred or is occurring, the
court shall make a declaration to that effect and shall make an abatement order
requiring the trade union to pay into court CAD1,000,000 for each day or partial day on
which a strike threat or a strike occurs or continues, unless the union satisfies the
court that the strike threat or strike occurred against the express instructions of the
trade union given before the strike threat or strike began; that all the actions of the
trade union and its officers and representatives have been consistent with those express
instructions since the instructions were given, and that neither the trade union nor any
of its officers or representatives has contravened section 4 of Bill 45 in respect of
the strike threat or strike. An abatement order:
- …
- (b) must include the following orders, as applicable:
- (i) if a strike threat is occurring, an order requiring
the employees and the trade union and its officers and representatives to
immediately cease engaging in all conduct that constitutes a strike
threat;
- (ii) if a strike is
occurring:
- (A) an order that the trade union
immediately instruct the employees who are on strike to end their
strike;
- (B) an order that the trade union immediately
instruct all employees in the bargaining unit to continue or resume, as the case
may be, the duties of their employment without slowdown or other diminution of
services; and
- (C) an order that all employees in the
bargaining unit immediately continue or resume, as the case may be, the duties
of their employment without slowdown or other diminution of services;
and
- (c) may include any other order or direction the
Court considers necessary or appropriate in the
circumstances.
- 210. The Committee understands that the amount determined by the court is
kept in a liability fund established pursuant to section 10 of Bill 45 and that an
employer who suffered "eligible losses" may apply to the court within a two-year period
after the day on which a strike threat or strike ends pursuant to section 11 of Bill 45.
This remedy given to an employer is in addition to any other remedies available in law
to the employer for the recovering of losses from the trade union in respect of a strike
threat or a strike (section 12). Where the court determines that an employer has
suffered eligible losses, the court shall grant judgment in favour of the employer
against the trade union for the amount of the eligible losses as determined by the court
to be paid out of a liability fund, unless the union satisfies the court that the strike
threat or strike occurred against the express instructions of the trade union given
before the strike threat or strike began, that all the actions of the trade union and
its officers and representatives have been consistent with those express instructions
since the instructions were given, and that neither the trade union nor any of its
officers or representatives has contravened section 4 of Bill 45 in respect of the
strike threat or strike. After the expiration of two years, any amount remaining in the
liability fund is returned to the union.
- 211. The Committee notes that pursuant to section 16 of Bill 45,
administrative penalties may be imposed by the minister or an appointed delegate on an
employee who has contravened section 4 in the amount not exceeding the amount determined
by multiplying the number of days or partial days on which the contravention occurred,
or continued by an amount equal to one day’s pay for that employee. The Committee
understands that pursuant to subsection (8), a person on whom an administrative penalty
is imposed and who pays the administrative penalty shall not be charged under Bill 45
with an offence in respect of the same contravention pursuant to section 18 (outlined
below).
- 212. The Committee notes the penalties imposed under section 18(1) of
Bill 45 on a person or a trade union or other organization that contravenes or fails to
comply with the abovementioned provisions of sections 4, 6 and 9:
- (a) in the case of an employer or trade union, to a fine of the
sum of:
- (i) $250 000; and
- (ii)
the amount determined by multiplying $50 by the number of employees who, on the
day the offence occurs or, in the case of an offence that continues for more
than one day, on the last day or partial day on which the offence occurs or
continues, belong to the bargaining unit to which the offence relates for each
day or partial day on which the offence occurs or continues;
- (b) in the case of an officer or representative of a trade union,
including an officer or representative who is an employee within the bargaining unit
to which the offence relates, to a fine of $10 000 for each day or partial day on
which the offence occurs or continues;
- (c) in the case of
an employee who is not an officer or representative referred to in clause (b), to a
fine not exceeding the amount determined by multiplying the number of days or
partial days on which the offence occurs or continues by an amount equal to one
day’s pay for that employee; or
- (d) in the case of a
person to whom or an organization to which none of clauses (a), (b) or (c) applies,
to a fine of $500 for each day or partial day on which the offence occurs or
continues.
- 213. At the outset, the Committee considers it necessary to draw a
distinction between cases where strike action should, as a fundamental right of workers
and their organizations, remain lawful, and those, where restrictions and even
prohibitions may be imposed on the exercise thereof. The Committee recalls that it has
always recognized the right to strike by workers and their organizations as a legitimate
means of defending their economic and social interests [see Digest, op. cit., para.
521]. It nevertheless considered that the right to strike may be restricted or
prohibited: (1) in the public service only for public servants exercising authority in
the name of the State; or (2) in essential services in the strict sense of the term
(that is, services, the interruption of which would endanger the life, personal safety
or health of the whole or part of the population) [see Digest, op. cit., para.
576].
- 214. The Committee recalls that in has examined the PSERA’s provisions
prohibiting strikes in the public services in Cases Nos 893 (see Reports Nos 187, 194,
202 and 204) and 1247 (see Report No. 241). In Case No. 1247, with reference to Case No.
893, the Committee considered that the right to strike is an essential means by which
workers may defend their occupational interests. It also recalled that, if limitations
on strike action are to be applied by legislation, a distinction should be made between
publicly-owned undertakings which are genuinely essential, that is, those which supply
services whose interruption would endanger the life, personal safety or health of the
whole or part of the population, and those which are not essential in the strict sense
of the term and requested the Government to consider the possibility of introducing an
amendment to the PSERA in order to confine the prohibition of strikes to services which
are essential in the strict sense of the term.
- 215. As regards the prohibition on the right to strike by certain
categories of workers under the LRC, the Committee recalls that while firefighting and
ambulance services as well as hospital sector may be considered to be essential
services, within those essential services, certain categories of employees, such as
hospital labourers and gardeners, should not be deprived of the right to strike [see
Digest, op. cit., para. 593].
- 216. With regard to the various sanctions imposed by Bill 45, the
Committee considers that while unlawful exercise of the right to strike may give rise to
certain sanctions, the national legislative provisions declaring a strike unlawful
should themselves be in conformity with the principles of freedom of association, which,
as indicated above is not the case as concerns some aspects of the PSERA, LRC and thus
the new Bill 45, which prohibit the right to strike of employees other than those
exercising authority in the name of the State and those providing essential services in
the strict sense of the term. The Committee therefore regrets that by adopting Bill 45,
the Government has reaffirmed the prohibition on collective action including on
employees who should enjoy the right to strike pursuant to the freedom of association
principles enunciated above.
- 217. The Committee expresses concern at the level of sanctions for strike
action or even threat of a strike, imposed by Bill 45, which could not only have a
significant damaging effect on the financial resources of the union but may very well
hinder the union’s capacity to undertake lawful strike action due to the uncertainty in
the interpretation of Bill 45. With regard to the sanction of deduction from payroll of
trade union dues foreseen in section 6 of Bill 45, the Committee recalls that the
withdrawal of the check-off facility, which could lead to financial difficulties for
trade union organizations, is not conducive to the development of harmonious industrial
relations and should therefore be avoided [see Digest, op. cit., para. 475]. The
Committee further recalls that penal sanctions should not be imposed on any worker for
participating in a peaceful strike. Finally, the Committee emphasizes that legislative
provisions which impose sanctions in relation to the threat of strike are contrary to
freedom of expression and principles of freedom of association.
- 218. Noting the Government of Alberta’s indication that Bill 45 is not
currently in force and is the subject of domestic litigation, the Committee requests the
Government to keep it informed of the outcome of the judicial proceedings and expects
that its conclusions above will be taken into account within the framework of the review
of Bill 45.
The Committee’s recommendations
The Committee’s recommendations- 219. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee
expects that in the future the Government will engage, at an early stage of the
process, in full and frank consultations with the relevant workers’ and employers’
organizations on any questions or proposed legislation affecting trade union rights
so as to permit the attainment of mutually acceptable solutions.
- (b) Noting
that the Public Sector Services Continuation Act (Bill 45) is not currently in force
and is the subject of domestic litigation, the Committee requests the Government to
keep it informed of the outcome of the judicial proceedings and expects that its
conclusions above will be taken into account within the framework of the review Bill
45.
