'Not a cutting-edge, lead-the-country reform'

Last week, Alberta introduced Bill 17 (the Fair and Family-friendly Workplaces Act). This Act proposes the first substantive changes to the Employment Standards Code and the Labour Relations Code since the late 1980s.

The Employment Standards Code sets out minimum terms and conditions of employment (e.g., minimum wage, maximum hours of work, eligibility for maternity leave) and applies to mostly non-unionized workplaces. The Labour Relations Code regulates unionization and collective bargaining in the province.

The majority of the changes set out in Bill 17 focus on improving the lives of non-unionized workers, who comprise about 80% of Alberta workers.

Job-protected leaves

The Alberta government has introduced or expanded unpaid, job-protected leaves in the Employment Standards Code that address workers’ family responsibilities. Compassionate care and parental leave have been extended to align with federal Employment Insurance provisions. Bill 17 also includes short-term and long-term job-protected sick leave, bereavement leave, and domestic violence leave, as well as leaves when a child becomes sick, disappears, or dies. The length of service required before being entitled to these leaves has been reduced and standardized to 90 days.

The government is heavily emphasizing these leaves in its messaging for two reasons.

First, emphasizing changes that primarily benefit parents in low-wage jobs increases the political risk of opposing Bill 17. For the Tories and Wildrose, any opposition to the bill can be easily (if perhaps unfairly) be labeled as “anti-family” or “anti-women.” The government’s decision to feature Amanda Jensen in its rollout may make employers reluctant to oppose the bill for fear of being lumped in with the “bad actor” employers who would fire a women because she needed time off for her son’s cancer treatment. (It is worth noting that the government left alone provisions that allow employers to fire workers for virtually any other reason, including no reason.)

Second, looking towards the 2019 election, the NDP appears to be building a record of helping families. This approach is similar to Alison Redford’s 2012 “soccer mom” election strategy. Bill 17 provides real assistance to potential middle- and lower-class voters who must often juggle sick kids and elderly parents.

An interesting wrinkle with these unpaid leaves is that they reinforce the gendered nature of caregiving in Alberta. Women in Alberta have after-tax incomes of (on average) 60% of men’s incomes. A heterosexual couple considering accessing unpaid leave might very sensibly decide that the female partner should stay home because that will have a lesser effect on family income. (It is important to note that partial federal wage-replacement benefits are available for some of these leaves). Employer-paid leaves or employment-equity legislation would help remedy this issue.

Child labour, wage theft, and enforcement

Bill 17 will raise the minimum age of employment from 12 to 13. There was strong support for this change during the 2005 Employment Standards Code review, but the then-governing Tories took no action on that review beyond increasing the minimum wage. This change finally brings Alberta into compliance with Canada’s obligations under the International Labour Organization’s 1973 convention on the minimum age for employment. Additional consultations will occur to revise Alberta’s outdated list of light duties that 13- to 15-year-old workers can legally perform. A list of hazardous duties that 16- and 17-year-old workers can perform only with a permit will also be established.

Alberta will also allow for immediate financial penalties when employers violate the Employment Standards Code, as well as public shaming of bad actors. The ability of the government to identify and collect unpaid wages has also been enhanced and some longstanding employer loopholes have been closed. These changes may make it easier for the government to address wage theft. Although Alberta stats are hard to find, wage theft (e.g., unpaid over time, illegal deductions) is endemic in most jurisdictions.

The fining and shaming employer provisions are similar to those in the Occupational Health and Safety (OHS) Act and create the opportunity for more aggressive enforcement. Whether enforcement will improve is an open question: the Tories largely ignored the provisions they inserted in the OHS Act. Additional enforcement (in the form of workplace inspections) is necessary because the most vulnerable workers—those working low-wage, causal jobs or whose residency is contingent upon their employment—are simply not going to file a complaint for fear of employer retaliation.

Fear of retaliation by employers means workers are unlikely to report deductions from workers’ pay cheques for dine-and-dash or gasoline drive-offs, which Bill 17 makes clearly illegal. Further, many restaurant workers pay into dine-and-dash funds from their tips (which are not wages, even though they are income), and Bill 17 will allow this practice to continue.

Card-check certification

Turning to unionized workplaces governed by the Labour Relations Code, Bill 17 proposes to dispense with certification votes when greater than 65% of workers support such applications by signing cards supporting unionization. Alberta currently requires secret-ballot votes for all union certification applications. The delay inherent in holding a vote gives employers the opportunity to pressure workers into rejecting unionization, and employer intimidation of workers during union drives is commonplace. One Canadian study found that 80% of employers oppose certification drives, 60% do so overtly, and 20% take action that is illegal (e.g., threatening or dismissing workers).

Employers and opposition parties have been attempting to equate certification votes with the electoral process and thereby frame the elimination of votes as anti-democratic. This facile assertion ignores the fact that when we cast a vote in a federal or provincial election, the government doesn’t spend the campaign period threatening to fire us if we vote for a different party. This suggests different selection mechanisms might be appropriate when assessing workers’ interest in unionization.

Such claims also ignore that elections and union drives are fundamentally different. Government policies profoundly affect every aspect of our lives and can’t be avoided (unless we abandon our country and citizenship). By contrast, the selection of a bargaining agent affects only certain aspects of our employment and the effects (typically higher wages and greater job security) can be avoided by changing jobs.

Employers and opposition parties have also raised the bogeyman of union intimidation, albeit without providing any evidence that this occurs on a meaningful scale in Alberta. Interestingly, Bill 17 provides remedy for both employer and union intimidation by granting the Labour Relations Board the power to automatically certify (or decertify) a workplace without a vote if its finds the employer or union engaged in unfair labour practices. Other minor changes include tightening the timelines for processing certification applications and lightening the initial evidentiary burden in cases where workers have been terminated potentially in conflict with the code (since the reasons for the termination are solely within the knowledge of the employer).

First-contract arbitration and essential services in continuing care

Newly unionized workplaces where collective bargaining reaches an impasse will be able to refer disputes to a neutral arbitrator to determine the terms of the first collective agreement. These provisions are designed to address instances when employers stall bargaining with a newly formed union in the hope of breaking the union. Unions and employers rarely use first-contract arbitration in jurisdictions that have it, because the option to refer disputes to first-contract arbitration eliminates the incentive to stall bargaining. Instead, the parties tend to focus on getting an agreement that they can live with.

In 2016, the government amended the Labour Relations Code to grant most public-sector workers the right to strike in order to comply with a 2015 Supreme Court decision. These changes included essential services provisions to avoid a strike or lockout endangering the life, safety, or health of the public (e.g., a nurses strike closing hospitals). The required essential services agreement (ESA) means the parties must identify and provide the minimum level of staffing necessary to avoid profound public harm during the work stoppage. (As an aside, to date ESAs have proven to be extremely difficult to negotiate. Some trade unionists suspect they may be impossible to conclude in some public-sector units because of the complexity and size of the unit.) In exchange, employers are precluded from hiring replacement workers. These ESAs have the effect of reducing the effectiveness of strikes by limiting the pressure workers can place on public-sector employers by withdrawing their labour.

Bill 17 extends the essential services provisions to all continuing-care facilities (whether operated on a for-profit or not-for-profit basis). Given that most work in these facilities is essential for resident care and private-sector employers keep staffing levels as low as possible to save costs, in the event of a work-stoppage most workers are likely to be deemed essential workers. I have informally heard that in negotiating ESAs in the public sector, where staffing levels are routinely higher than in private-sector facilities, the essential staffing levels during a work stoppage proposed by the employer have been higher than everyday staffing levels!

Designating most of the members of a bargaining unit as essential has the potential to profoundly undercut the bargaining power of unions organizing in this sector (primarily the Alberta Union of Provincial Employees). This is because ESAs will attenuate the operational impact of a strike to the point where the strike won’t matter to the employer. Similarly, the ESAs make it easy for the employer to lockout the workers. The ban on hiring replacements workers when an ESA is in place is essentially immaterial if the whole bargaining unit is on the job as designated essential workers.

While the official line on ESAs in continuing care seems to be harmonizing the rules between the public and private sectors, this explanation obscures that these sectors are operated very differently. Further, limiting the strike power of unionized workers in private-sector care homes helps the government realize its increasingly clear public-sector wage containment agenda.

The government has been both messaging about and actively seeking public-sector wage freezes. The recent Alberta Teachers Association agreement contains a two-year wage freeze (although raises will happen if other major public-sector unions make wage gains). A new, fiscally sustainable contract with doctors is in the works. And the new labour relations framework in post-secondary education gives employers significant short-term leverage in order to contain wages.

Limiting the bargaining power of unions in continuing care will encourage unions to reduce their demands, thereby transferring the cost of seniors care onto workers in the form of substandard wages and working conditions. This, in turn, perpetuates the financial advantage (to government) of privately operated long-term care facilities, where pay is as much as 30% less than in publicly operated facilities.

This dynamic also impedes unions (like AUPE) from negotiating higher staffing ratios (which improve patient care). The effect of this policy (which may have been unintentional) sits uneasily with many union activists, in part because the New Democrats’ record on labour disputes on continuing care is looking much like the Tories' record.

Conclusion

Bill 17 remedies a number of long-standing issues with Alberta employment law while leaving other issues untouched. As noted by Andy Sims, the former Alberta Labour Relations Board chair and long-time arbitrator who provided advice to the government on Bill 17, "This is not a cutting-edge, lead-the-country reform. It is, in most respects, a bring-the-best-experiences-from-elsewhere to Alberta.”

The biggest winners are non-unionized workers, who will see significant improvements in their leave entitlements as well as smaller changes to deductions, overtime, and holiday pay. That said, many employer-friendly provisions remain unchanged: employers can still sack workers for no reason (if they give a tiny bit of severance pay), employers can compel overtime (including 12-hour days), and, absent a vast increase in the number and aggressiveness of Employment Standards officers, employers can violate any of these rules willy-nilly with no real consequences.

Organized labour also gets some of their wants satisfied in the form of card-check certification, first-contract arbitration, remedial certification, and better access to workers on remote sites. Other stuff (like a ban on employers evading union agreements in construction or restrictions on replacement workers) went unchanged. While labour leaders are likely to smile and make the best of it, there is growing debate and tension among union activists (many of whom are also NDP activists) about the Notley government’s record on labour. These folks are disappointed.

Employers also have reason to be glad as the government didn’t really rock the boat for non-unionized employers. And, in unionized workplaces, it chose not to make much more significant changes to construction-industry labour relations, concerted activity protections, anti-scab legislation, and sectoral bargaining—some of which have been in the mix in Ontario’s recent review of its employment and labour law.

To date, the opposition parties have been limited to complaining that the bill is too big and should be broken into parts. Since both Brian Jean and Jason Kenney were MPs in the Harper government (which wrote the book on omnibus legislation), these complaints ring rather hollow. It remains to be seen if they can manage to cobble together any insightful critiques.

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