Freedom of Association, Freedom of Expression and Collective Bargaining – Are there Justifiable Limits?

Linda McKay-Panos

 

For several years, public service employees have been restricted in their right to strike, in order to preserve their “essential” services. However, some argue that recent changes to Alberta’s public service labour legislation unjustifiably interfere with several rights under the Canadian Charter of Rights and Freedoms (“Charter”)— particularly freedom of association and freedom of expression.

 

Alberta’s Public Service Employee Relations Act RSA 2000 c P-43 (PSERA) and its Labour Relations Code, RSA 2000 c L-1 (Code), provide limits on striking by public service employees (people employed by the Alberta Government). Section 70 of the PSERA prohibits employees or unions to whom the Act applies from striking or causing a strike. Section 96 of the Code prohibits employees and trade unions to which Division 16 of the Code applies from engaging in a strike, causing a strike or threatening to cause a strike. Instead of strikes, the PSERA provides for compulsory interest arbitration to settle any disputes about terms or conditions of employment. In the same way, the Code provides for compulsory interest arbitration to resolve bargaining disputes in trade unions to whom the Code applies.

 

Both the Code and the PSERA provide for fines for people, trade unions and their officers or representatives who cause, consent to, or engage in a strike that is prohibited by the legislation. Section 69 of the PSERA and section 114 of the Code provide that if a prohibited strike commences, the Board may impose a suspension of the deduction and remittance of union dues by the employer (Alberta Government) for between one to six months.

 

The Alberta Government introduced Bill 45, the Public Sector Services Continuation Act on November 27, 2013. This Bill received Royal Assent on December 11, 2013. It is awaiting proclamation. Bill 45 substantially increases the fines and penalties that are imposed on unions, members and employees in relation to strikes that are already prohibited by the PSERA and Code. Additionally, there is an expansion on the type and range of conduct related to strikes in which these fines and penalties will apply.

 

The following are examples of proposed changes:

 

  • Employees, trade unions and their officers and representatives are prohibited from threatening to strike (section 4(2) and 4(3));

 

  • A “strike threat” includes calling a strike, threatening to call or authorize a strike, setting a poll or vote of employees to see if they want to strike and any other act that could “reasonably be perceived as preparation for an employees’ strike” (section 1(1)(k)(i)–(v));

 

  • A three-month suspension of the deduction and remittance of union dues is automatic upon any finding that a strike threat or strike has occurred. The suspension is increased by a month for each additional day or partial day upon which the strike threat or strike continues (section 6(1) to (2));

 

  • Trade unions can avoid dues suspension in the case of any strike or strike threat if they prove all of the following to the Labour Relations Board:
    • The strike or strike threat occurred against the express instructions of the trade union, which instructions must have been given prior to the strike threat or strike (section 6(3)(a));
    • All of the actions of the trade union and its officers have been consistent with the instructions (section 6(3)(b)); and
    • The trade union and its officers or representatives have never previously contravened section 4 (section 6(3)(c)).

 

  • Upon application to Court by an employer, if the Court finds that a strike threat or strike has occurred, the Court must require the trade union to pay $1,000,000 into Court for each day or partial day on which the strike threat or strike occurs or continues. Money required to be paid into this fund will be held for a period of at least two years to satisfy any possible judgments relating to losses resulting from the strike or strike threat (sections 9 to 12);

 

  • The trade union can avoid payment into Court of the amount referred to above if it proves all of the following to the Court:
    • The strike or strike threat occurred against the express instructions of the trade union, which instructions must have been given prior to the strike threat or strike (section 9(10)(a);
    • All of the actions of the trade union and its officers have been consistent with the instructions (section 9(10)(b)); and
    • The trade union and its officers or representatives have never contravened section 4 (section 9(10)(c)).

 

  • A trade union will not be found liable for losses resulting from a strike or strike threat if it proves all of the following to the Court:
    • The strike or strike threat occurred against the express instructions of the trade union, which instructions must have been given prior to the strike threat or strikes (section 11(8)(a));
    • All of the actions of the trade union and its officers have been consistent with the instructions  (section 11(8)(b); and
    • The trade union and its officers or representatives have never contravened section 4 (section 11(8)(c).

 

  • Employees found to have contravened sections 4(1), (2) or (4) are subject to the imposition by the employer of a penalty of up to one day’s pay for each day or partial day of the breach (section 16);

 

  • Substantial fines (e.g., $250,000 plus $50 per employee who belongs to the union that day) are payable by a union for each day or partial day a strike, strike threat or other breach of the legislation occurs (section 18);

 

  • Any person who ‘counsels’ another person to contravene section 4(1) or 4(2) is subject to a fine of $500 for each day or partial day on which the offence is found to occur or continue (section 18(d)); and

 

  • Service of documents may be effective by simply leaving the document at the trade union’s most recent business address on record with the Labour Relations Board (section 21). Service of the Board’s original directive even before it is filed with the Court, is deemed to be service of the as yet unfiled Court Order, for the purposes of contempt (section 5(8)).

 

The Alberta Union of Provincial Employees (“AUPE”), which represents Alberta Government employees, recently applied to the Alberta Court of Queen’s Bench for a declaration that the Public Sector Services Continuation Act and the sections set out above breach the Charter (particularly sections 2(d), 2(b), 7, 11(d) and 12), and are not saved by Charter section 1 (see: AUPE, Alberta Court of Queen’s Bench, File Number 1403-10-00279 Statement of Claim. Online: http://www.aupe.org/news/as-labour-board-hearing-into-bill-46-begins-today-aupe-files-lawsuit-over-bill-45/ (“AUPE Statement of Claim”)). Among the remedies AUPE seeks is a declaration that these sections are of no force or effect under the Constitution Act, 1982, section 52.

 

Of particular interest are the allegations that the new legislation violates sections 2(d) freedom of association, and 2(b) freedom of expression.

 

Section 2(d) of the Charter guarantees individuals the freedom of association. Freedom of association includes the right to establish an independent employee association and to exercise in association, the lawful rights of its members (Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989.  Originally, the Supreme Court of Canada held that freedom of association does not include, in the case of a trade union, the right to bargain collectively or the right to strike: Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313.  Nevertheless, the SCC later held that freedom to associate becomes meaningless if the state does not take positive steps to ensure that this right is not a hollow one: Dunmore v Ontario (Attorney General) 2001 SCC 94, per Justice L’Heureux-Dubé. The issue of balancing the Charter freedom of association of government employees who deliver essential social services arose in Health Services & Support-Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27) (”Health Services”). This case focused not on the right to strike, but rather on the collective bargaining process. Chief Justice McLachlin, speaking for the majority stated (at para 20):

 

Our conclusion that s. 2(d) of the Charter protects a process of collective bargaining rests on four propositions. First, a review of the s. 2(d) jurisprudence of this Court reveals that the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining can no longer stand. Second, an interpretation of s. 2(d) that precludes collective bargaining from its ambit is inconsistent with Canada’s historic recognition of the importance of collective bargaining to freedom of association. Third, collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees. Finally, interpreting s. 2(d) as including a right to collective bargaining is consistent with, and indeed, promotes, other Charter rights, freedoms and values.

 

Justice McLachlin set out two factors that must be considered in determining whether a government measure substantially interferes with the collective bargaining process (para 93):

 

Generally speaking, determining whether a government measure affecting the protected process of collective bargaining amounts to substantial interference involves two inquiries. The first inquiry is into the importance of the matter affected to the process of collective bargaining, and more specifically, to the capacity of the union members to come together and pursue collective goals in concert. The second inquiry is into the manner in which the measure impacts on the collective right to good faith negotiation and consultation.

 

In the case of Bill 45, AUPE argues that the government employees have the right to organize, to engage in a meaningful process of good faith collective bargaining in an attempt to achieve workplace-related goals, and to seek to negotiate important terms and conditions of employment into a collective agreement. They assert that freedom of association also includes the right of unions and their members to engage in partial or complete withdrawal of their labour as part of the collective bargaining process. The AUPE argues that section 4 of Bill 45 breaches the right to freedom of association by prohibiting all unions and employees from threatening to withdraw or from actually withdrawing their labour as part of the collective bargaining process or for any other purpose. They argue that the same is true for Section 70 of the PSERA and section 96 of the Code. In addition, they assert that the penalties, fines and the abatement fund provided under Bill 45 have the effect of “financially crippling” trade unions, in that these will effectively prevent unions from meaningfully representing members in bargaining, in relation to the administration of the collective agreement and with respect to all matters that trade unions advocate on behalf of their members (AUPE Statement of Claim, paras 20-24).

 

The AUPE also alleges that Bill 45 violates the employees’ and trade unions’ right to freedom of expression.  Charter section 2(b) protects freedom of expression. In Canada, freedom of expression is regarded as necessary for protecting democracy, encouraging the free trade of ideas (including political ideas), and supporting self-fulfillment. AUPE argues that Charter section 2(b) protects the right of employees and trade unions to express themselves on matters concerning the terms and conditions of their employment. They also argue that section 2(b) protects the rights of employees and unions to express themselves in relation to the possible withdrawal of their labour, as part of the collective bargaining process. They assert that expression related to collectively withdrawing labour as part of the collective bargaining process is a significant and fundamental means by which employees and unions peacefully express themselves and convey meaning about the terms and conditions of their employment and other important matters of public policy.  In particular, Bill 45, section 4, section 70 of the PSERA and Code section 96 violate section 2(b) by prohibiting all unions and employees from withdrawing or threatening to withdraw their labour as part of the collective bargaining process or for any other purpose. In addition, section 4 of Bill 45 prohibits any person from “counseling” another person to contravene section 4, which infringes Charter section 2(b) (AUPE Statement of Claim, paras 26-7).

 

If the AUPE is successful in any of its Charter arguments, the Alberta Government will have the opportunity to defend its proposed and existing legislation under Charter section 1, which provides:

 

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

In order to determine whether the legislation can be justified, the SCC will use a modified Oakes test (see: R v Oakes, [1986] 1 SCR 103). After determining that the limit on the freedom or right is prescribed by law (and it is legislation here), the court must then determine if it is reasonable and demonstrably justified in a free and democratic society. In order to do so, the SCC first examines the legislation’s objective to see if it is substantial, and next examines whether the limits imposed by the legislation are a proportionate means for achieving Parliament’s objective.  The latter is determined by looking at three criteria: 1) rational connection between the measure and its objective; 2) minimal impairment of the right or freedom in question; and 3) whether the deleterious effects of the measure outweigh the its salutary effects.

 

In Health Services, the SCC noted that the infringement of the right to bargain collectively was prescribed by law (para 140). The objectives of the legislation (“to improve on the delivery of health care services by enabling health authorities to focus resources on the delivery of clinical services, by enhancing the ability of health employers and authorities to respect quickly and effectively to changing circumstances, and by enhancing the accountability of decision-makers in public health care” (para 143)) were pressing and substantial. Next, the SCC found that it was logical and reasonable to conclude the means adopted by the Act to achieve the government’s objective were rationally connected to the objective. The means included: modifying the scheme of bumping rights, winding up some related labour agreements, and loosening restrictions on the employer’s ability to contract out non-clinical services, transfer and reassign employees and lay off employees (para 149). The SCC concluded, however, that the government had not established that the law minimally impaired the Charter right (to freedom of association; collective bargaining). The government had provided no evidence to support a conclusion that the impairment was minimal (para 151). Thus, the offending provisions of the legislation were unconstitutional.

 

To justify Bill 45’s limits on Charter rights, the Alberta Government will likely argue that the purpose of the legislation is to “protect the Alberta taxpayer from an illegal strike.” (David Hancock, Second Reading Bill 45 The 28th Legislature First Session Alberta Hansard Thursday, November 28, 2013 (“Hansard”)). The Bill is said to establish a “more comprehensive and responsive system to respond to the threat of illegal strikes or strikes themselves.” Further, the threat of a strike requires significant mobilization of resources to avert harm in the event that a strike happens. The Government will assert that Bill 45 is an effective deterrent to illegal behavior, and thus will help ensure that Albertans receive essential services. Albertans will be confident that the services they rely on will continue because there are severe consequences for illegal strikes. This Bill also addresses the workers who feel pressured not to cross an illegal picket line by punishing unions who call an illegal strike (Hansard). David Hancock points to the situation in April 2012 when 2,000 correctional peace officers walked off their jobs. This caused immediate serious effects. For example, in one institution more than 450 inmates were left to be attended by only seven managers (Hansard). An escape of the prisoners from the institution could have put the public at risk. In addition to being an attack on public safety, it was an attack on the public purse. The costs included having the RCMP act as guards and overtime costs for managerial staff. The fines and sanctions that were allowed under the existing legislation amounted to a “slap on the wrist” (Hansard). Under the proposed new legislation, the union would have to pay $5 million into court, which would have been used to reimburse Alberta taxpayers (Hansard).

 

The Court will determine whether the objective of preserving public services and saving taxpayer money is pressing and substantial, whether the provisions in Bill 45 are rationally connected to this objective, and whether these provisions minimally impair the rights and freedoms in question (including freedom of expression and freedom of association).

 

This lawsuit demonstrates the importance of freedom of association and freedom of expression in the labour relations context, while illustrating how the Government will have to justify any limitation of those rights. It also illustrates the importance of consultation with stakeholders when proposing a new law or a significant amendment to a law. One of the major complaints in this lawsuit is that the people who will be most directly affected by the Bill were not adequately consulted before it was proposed and passed (AUPE Statement of Claim, paras 14-16).

 

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