Recently, workers employed at post-secondary academic institutions in Alberta pondered two important issues. One, was how could the Post-Secondary Learning Act (PSLA), which governs Alberta’s universities, colleges, and technical institutes, be revised to more favour the workers’ interests, in light of the fact that the workers now had to be granted the right to strike. The other related issue was 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 the case in the other nine provinces?
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 vs the Saskatchewan government (SFL vs S). The case began in 2008 when the SFL challenged the constitutionality of Saskatchewan’s new Public Services Essential Services Act and the new Trade Union Amendment Act, both of which became Saskatchewan law in May, 2008. The SFL and other unions challenged the parts of the new legislation which stated that only the employer, e.g., the university or college, could decide who had 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.
The resolution of the SFL vs S case in favour of academic workers having the right to strike led to the Government of Alberta needing to amend current legislation. On April 7, 2016, the Alberta government passed Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services. Bill 4 “provides public sector workers…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, 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.”
Following Bill 4 and the change in provincial government, a series of round tables and discussions were held in Alberta concerning what exactly to do about revising the PSLA in light of the Saskatchewan decision. On April 6, 2017, Bill 7, An Act to Enhance Post-Secondary Academic Bargaining, passed first reading in the Alberta legislature. The text of the actual bill is very long so a well-informed summary of what it specifically changes for academic workers is useful. Fortunately, such a summary has been provided in a lengthy memo written by the Blair Chahley law firm in Edmonton, which is often retained in cases involving labour issues.
The following is an attempt at a summary of that memo, using the same internal headings as in the original. At the end of the article a link is provided to the full memo, signed by Leanne Chahley, for purposes of comparison. Any mistakes in the summary in this issue (below) are solely attributable to the author of the summary.
Summary of Memo on Bill 7
Labour Relations Moved to Labour Relations Code: Bill 7 moves academic labour relations for post-secondary institutions from the PSLA to the Labour Relations Code (LRC). When PSEs act as employers of their workers, the LRC applies. Further, the faculty associations (FAs), graduate student associations (GSAs) and organizations of post-doctoral fellows (PDFs) become trade unions under the LRC. Any existing or future labour agreements become collective agreements under the LRC.
Bargaining Agent Status: The FAs, GSAs, and PDFs are deemed the bargaining agents of their respective members. This status is protected for five years. The stated aim of the five year transition is to protect the associations’ statuses as the bargaining units until July 2022. The bill does not say what will happen in 5 years. (For a perspective on the effect of the five year transition, see the article, “Alberta rushes profs toward strike-lockout” by Athabasca University professor Bob Barnetson at http://albertalabour.blogspot.ca/).
Bargaining Unit: Academic employees with managerial functions, such as members of the medical, dental, architectural, engineering or legal professions, are now defined as members of the academic bargaining units.
Designation of Academics: Bill 7 leaves in place the provisions of the PSLA which allow post-secondary institutions to designate which categories of employees and individual employees are or are not academic staff.
Collective Bargaining: If passed, Bill 7 will retroactively impact any ongoing collective bargaining to the date of the bill’s first reading, April 6, 2017. Since the bill gives the right to strike and lockout, this would void any previous provisions for compulsory arbitration. The bill includes the duty to bargain in good faith, technical rules to give notice of bargaining, requirement to engage in mediation prior to a strike or lockout, and provisions regarding unfair labour practices.
Essential Services: Employers and bargaining agents are required, as part of their collective bargaining, to put in place an essential services agreement. Essential services are those that must remain in operation even during a strike. (For a commentary on essential services, see the separate article in this newsletter, “Essential services must not undermine the right to strike”).
Current Ongoing Collective Bargaining: Ongoing collective bargaining that started under the PSLA now continues under the LRC and is now subject to the provisions of the LRC. If the parties have referred a dispute to binding arbitration before April 5, this arbitration continues. (See Barnetson’s article for a perspective on the issue of the new Bill’s effect on ongoing bargaining.)
Section 156 of the LRC: This is an exclusion which is intended to ensure that the rights and obligations now existing under the Universities Academic Pension Plan remain unchanged and are not impacted by the provisions of the LRC.
Amendments to the PSLA: The definition of non-academic staff is amended to be those staff other than academic staff, academically employed graduate students, and post-doctoral fellows. A new and separate bargaining agent-trade union is created for post-doctoral fellows. The bill and future collective agreements will impact the existing agreement concerning the president’s power to suspend any member of the academic staff and the Board of Governor’s power to determine working conditions of academic staff. The sections of the PSLA which deal with bargaining rights, binding arbitration, and GSA negotiations are repealed. Section 90 of the PSLA is amended to provide that the provincial Employment Standards Code does not apply to academic staff, academically employed graduate students, and post-doctoral fellows, or to the boards which employ them.
Amendments to PSERA: PSERA does not apply to academic staff, graduate students, or post-doctoral fellows. (Note: Our local, CUPE 3911, was previously under PSERA because we were considered “non-academic employees”.)
Coming into Force: Once Bill 7 is passed, its provisions will come into force as of April 6, 2017, the date of first reading of the bill.
Conclusions: Bill 7 moves Alberta academic workers under the LRC and gives them the right to strike. It eliminates compulsory arbitration. It classifies professionals in academia who have managerial functions as academic staff. The bargaining rights of the faculty and graduate students association are upheld and post-doctoral fellow associations with bargaining rights are created. It requires academic workers to bargain essential services agreements with the employer. It suggests the need for academic workers to create strike protocols and build adequate strike funds. The five year transitioning period provides for a change to the new regime without the disruption of possible certification and decertification proceedings. Overall, the bill brings the right of the academic workplace parties more into line with the rights of academic workers in similar post-secondary workplaces all across Canada.
(For the full text of the original memo from Blair Chahley on which the above summary article is based, go to: http://www.aasua.ca/wp-content/uploads/2017/04/Bill-7-summary-and-interpretation-April-7-2017.pdf)
(For another overall view of the significance of Bill 7 see also Ricardo Acuna’s article, “Province gets university bargaining right”, in Vue magazine, April 13-19, 2017. http://www.vueweekly.com/province-gets-university-bargaining-right/)
(For yet another commentary on Bill 7, see David Climenhaga’s article on his Albertapolitics.ca blog, “Big changes coming to academic faculty, graduate students, and post-doctoral bargaining rights in Alberta”, http://albertapolitics.ca/2017/04/big-changes-coming-academic-faculty-graduate-student-postdoctoral-bargaining-rights)