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The essentials of Alberta's new essential services bill

Bill 4 (An Act to Implement a Supreme Court Ruling Governing Essential Services) was introduced Tuesday in the Legislature by Alberta Minister of Labour Christina Gray. It provides many Alberta public sector workers with the right to strike when collective bargaining reaches impasse—a change necessitated by a 2015 Supreme Court decision (Saskatchewan Federation of Labour v Saskatchewan) that found blanket strike prohibitions to be contrary to the Charter of Rights and Freedoms.

Bill 4 amends the Public Service Employee Relations Act and the Labour Relations Code, thereby affecting direct government employees and employees of agencies, boards and commissions, Alberta Health Services, and approved hospitals. It provides public sector workers who are governed by these laws with the right to strike. This right, however, is limited by a need to ensure the life, safety, and health of the public. In these cases, unions and employers will be required to negotiate a protocol for the provision of minimal essential public services.

While strikes have been illegal for most public sector workers in Alberta for decades, there have been a small number of cases (e.g., nurses, hospital laundry workers, jail guards) when workers have defied this strike ban. For example, in April of 2013, correctional workers at the new Edmonton Remand Centre walked out over unresolved safety concerns and the related suspension (later firing) of two coworkers. This wildcat strike began spreading to other jails and into the court system until the union (facing crippling fines) pressured its members to go back to work.

The political challenge of illegal strikes is that they can spread and imperil the legitimacy of the government. For example, if fines hadn't been effective at curtailing the jail guard strike, would police officers have arrested the strikers? If not, then the government would have effectively lost control of the province. Governments know they require the consent of the governed and typically create structures—like labour laws permitting strikes—that channel worker discontent into manageable dispute resolution processes.

Organized labour—including AUPEHSAA, UNA, and AFL—has congratulated the NDP government on granting public sector workers the right to strike. Yet a careful reading of Bill 4 suggests the outcomes will be complex and nuanced. For example, while it will be easier for public sector workers to strike (since it is no longer illegal), it is unlikely that we’ll see a huge increase in public sector strikes and lockouts.

Under the current arbitration system, there aren't a lot of incentives for public sector unions and employers to compromise at the bargaining table, because the biggest risk each side faces is that the arbitrator will impose the other side's last offer as the settlement. Further, the assumption that an arbitrator is likely to split the difference on any outstanding issues incentivizes each side to hold back during bargaining.

"Strikes and lockouts entail significant financial and reputation risks for both sides … This dynamic heightens the willingness to compromise by both sides."

By contrast, strikes and lockouts entail significant financial and reputation risks for both sides. This compels unions and employers to grapple with whether the costs of a strike or lockout is really worth the potential gains. Typically, this dynamic heightens the willingness to compromise by both sides. That is to say, the threat of conflict often reduces the likelihood of it actually happening.

Essential services legislation is also likely to reduce the effectiveness of public sector strikes. Strikes are most effective at achieving workers' objectives when the employer is caught off guard and is forced to scramble to maintain services. In this way, sudden illegal strikes can be very effective at gaining concessions.

Bill 4 means that public sector employers will have lots of notice of an impeding strike. And some employers (e.g., health care providers) will even have a portion of their workforce available during to provide essential services (e.g., emergency room and emergency surgery coverage). This undermines the effectiveness of the strike action.

Finally, Bill 4 provides public-sector employers with the right to lock out their workers in order to pressure the workers to accept the employer’s bargaining demands. While public sector employers are unlikely to find a protracted lockout to be politically palatable, they might well use a so-called 24-hour lockout to significant effect.

Under labour law, contracts continue in effect until there is a strike and/or lockout. This allows employers to lock workers out for a short time and then invite them to come back to work under the employer's last offer. If the union doesn't call a strike, its workers are then required to go back to work and the employer's offer becomes the de facto terms of employment. This can be a very effective technique if support for a strike is weak in a workforce.

Workers who have spent their entire lives under compulsory arbitration may well be reluctant to engage in strike activity. For these workers, receiving the right to strike may well make them extremely vulnerable (at least at first) to employers that play hardball.

Photo credit: United Nurses of Alberta

Bob Barnetson

Dr. Bob Barnetson is a professor of labour relations at Athabasca University. His research focuses on the political economy of workplace injury, farm workers, and child labour in Alberta. He’s the author of The Political Economy of Workplace Injury in Canada (Athabasca University Press, 2010) and co-editor of the forthcoming book Farm Workers in Western Canada: Injustices and Activism (University of Alberta Press, 2016).

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