The Labour Relations Code is the Right Choice for Alberta's Academic Workers

November 16, 2016


Academic workers in Alberta are currently pondering two important issues.  One, is how can the Post Secondary Learning Act (PSLA), which now governs Alberta’s universities, colleges, and technical institutes, be revised to more favour the workers’ interests.  The other is whether Alberta’s academic workers should stay under the PSLA, which is a universities act to which an anti-democratic labour relations regime has been grafted, or move under the provincial Labour Relations Code (LRC), as is already the case in the other nine provinces?  Currently, the various academic associations at Alberta’s 26 post-secondary institutions are (1) Submitting their suggestions for revision of the PSLA, and, (2) Debating which of the (revised) PSLA or the LRC would be in their best interests as governing legislation.  Simultaneously, university administrations are also weighing in on both issues, e.g., on October 21 the presidents of University of Alberta, University of Calgary, and University of Lethbridge sent a joint letter to the Minister of Post-Secondary Education arguing that their academic employees should stay under the PSLA.


            The event that brought these issues to the fore was the January 30, 2015 Supreme Court of Canada decision in the case of the Saskatchewan Federation of Labour (SFL) vs the Saskatchewan government.  The SFL vs Saskatchewan case began in 2008 when the SFL challenged the constitutionality of Saskatchewan’s new Public Services Essential Services Act (PSESA) and the new Trade Union Amendment Act, both of which became law in May, 2008.  Specifically, the SFL and other unions challenged the aspect of the two pieces of legislation which stated that only the employer, e.g., the university, could decide who had the right to strike.  Obviously this was tantamount to denying workers the right to strike.  The case worked its way up through the usual levels of appeal until in January 2015 the Supreme Court of Canada declared that the two pieces of legislation were unconstitutional because Canada’s Charter of Rights and Freedoms does protect the right to strike (note 1).


            The January 2015 Saskatchewan court decision directly affected Alberta’s PSLA, PSERA (Public Service Employee Relations Act), and LRC because all three pieces of legislation essentially prohibit strikes in the public sector.  This led to the Government of Alberta necessarily deciding to amend all three so as to include the right to strike.  On April 7, 2016, the government passed Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services.  The heart of Bill 4 is that 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.”  In addition, Section 95.41(3) of Bill 4 states that the employer cannot hire replacement workers (scabs) to perform “the work of employees in the bargaining unit who are on strike or locked out.”

            It is instructive to first consider the “pro-PSLA, anti-LRC” arguments in the October 21 letter sent by the three university presidents.  Those arguments can be summed up briefly as follows: Academic workers in Alberta should stay under the PSLA because it embraces “collegial governance” which works in academia because it considers all points of vew and makes evidence-based decisions.  A labour code model is inappropriate for academia.  There is no evidence from the experience of other institutions in Canada that a labour code model has been positive (on the other hand, the presidents provide no evidence it has been negative).  Interestingly, the presidents claim that they do support academics’ right to strike BUT add that in academia the definition of “essential services” must be so broad that in practice striking would be unfeasible, e.g., welfare of lab animals, researcher agreements with third parties, student exams, etc. (note 2).  Finally, the three presidents claim that the statutory and arbitrary designation of academic bargaining units by the PSLA rather than by the employees themselves is appropriate because academic workers already “have their say” in university governance in other ways, i.e., collegial governance.  Also, there is no need for any appeal process relating to collective bargaining because academic staff are already meaningfully consulted on university matters through collegial governance and, in any case, universities must decide their own mission.


            The arguments of the three presidents essentially rest on a mythical notion of how Alberta universities actually function, i.e., through cooperative “collegial governance” by two bodies.  One body is the university Board of Governors (BoG), the members of which are ultimately appointed by the provincial government. The BoG is ostensibly in charge of financial matters.  Traditionally, the majority of its members, euphemistically called “public members”, have come from the corporate sector (note 3), giving that sector a great deal of influence in university decisions. The other body in collegial governance is the General Faculty Council (GFC) (aka Senate), which is made up of academics, and which handles educational matters.  In practice, however, collegial governance by these two bodies is not the case.  When administrators disagree with a GFC decision they argue the decision must be confirmed by the BoG, to which GFC is ultimately subservient, according to the PSLA.  The final decision-making power rests with the BoG, not with the academics, which is a corporate rather than a collegial governance model.  The reality of so-called collegial governance has long been under criticism by academic workers and its failure to function has caused some universities in Canada to switch to the Cambridge model of governance (note 4).


            From the perspective of Alberta’s academic workers what then are some of the main problems with retaining the PSLA as governing legislation?  Here are four of them.  (1) The PSLA denies each academic association the right to structure its own organization as the members see fit.  (2) The PSLA gives the employer the right to decide who can or cannot be a member of the bargaining unit (note 5).  (3) The PSLA fails to provide a statutory duty to bargain in good faith. (4) The PSLA denies academic staff the right to strike.  In contrast, the Alberta Labour Relations Code would allow each academic association to choose how to structure itself, would give the power to each association at each institution to decide who can or cannot be a member, would provide a statutory duty to bargain in good faith, and would give each association the right to strike. The three presidents suggest in their letter that a labour code model is incompatible with how universities function, even though such a model is already in place in every other province.  Perhaps what the presidents really mean is that a labour code model is incompatible because it would remove the very arbitrary decision-making power of Boards of Governors and return it to the academic workers where it belongs.


            Moving from being governed by the PSLA to being under the Labour Relations Code would be a step forward for academic workers in Alberta.  Presently, under the PSLA, Alberta academic workers have fewer rights and protections than their colleagues in any other province in Canada. Coming under the LRC would gain them some of those rights and protections that other academic workers in Canada already have.  In contrast, taking up the recommendations of the three Alberta university presidents would put them even further behind than they are now.  What the three presidents are proposing would take academic workers back to the days when they first began organizing to affirm their rights under provincial labour legislation some forty years ago.  Certainly the LRC has it faults; workers know from their own experience that they must fight for their rights under any labour legislation, no matter how “fair” it claims to be.  It should also be noted that the April 2015 SFL vs S. decision declares the right to strike to be a Charter Right, which could change if the Charter changed, rather than what it should be, that is, an inalienable human right which accrues to all workers by virtue of their being human.  All this only reaffirms that Alberta’s academic workers, like other workers, will need to continue to fight for their rights, in unity with all other workers, even when they are governed by the LRC rather than the PSLA.


Note 1:   Demonstrating the arbitrariness of such court judgments, in 1987, the Supreme Court of Canada ruled in the Reference re Public Service Relations Act (Alta.) case that the Charter did NOT guarantee the right to strike.


Note 2: Such an expanded definition of essential services has not been implemented in the other Canadian provinces where academic organizations function under Labour Codes.  Further, the SFL vs Saskatchewan decision specifically noted that an expanded definition constituted interference with the right to strike.


Note 3: A recent uproar at University of Calgary (U of C) regarding the close connections of several governors, including the president, with energy monopoly Enbridge is a good illustration. U of C had opened an Enbridge-funded energy research centre in 2012.  Questions were raised as to whether Enbridge was using its connections to interfere in university decision-making.


Note 4: At University of Cambridge in the UK, the responsibility for decision-making on all academic and non-academic matters falls to administrators and faculty. All 3,000 members of the governing body of the university, known as the Regent House, have the right to vote on every major issue and to set policy and make decisions on the strategic direction for the university. This decision-making model has been in place at Cambridge since its founding over 800 years ago.


Note 5: Designation is especially a problem for Alberta’s contract academics who become members of their academic associations when they have a contract and are dropped from membership when they are between contracts.

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