Essential Services Must not Undermine the Right to Strike

 

Public sector workers in Alberta and their unions have waged a sustained fight for full bargaining rights including the right to strike ever since the 1970s when the Lougheed government banned public sector strikes. Workers waged this fight on the basis that as workers who create wealth and provide the services that Canadians need, they have a right to wages, benefits, and pensions commensurate with their work and qualifications, and to working conditions that allow them to carry out their responsibilities to the people of Alberta.  In the case of academic workers, this right to appropriate working conditions is often expressed as “teacher working conditions are student learning conditions.”

 

The Alberta government has just introduced new legislation to further revise Alberta's labour laws that previously criminalized strike action by public sector workers, including most staff at public colleges and universities. The new law places academic workers under the Alberta Labour Code instead of under the Post-Secondary Learning Act (PSLA). The previous ban on strikes was rendered unconstitutional by the Supreme Court of Canada decision on Saskatchewan Federation of Labour v. Saskatchewan (SFL vs S), January 30, 2015.  The Alberta government first announced new legislation to “grant” the right to strike on April 7, 2016, when they passed Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services.  The additional legislation announced on April 6, 2017, further amends the law by covering the faculty associations, graduate students and post-doctoral fellows not covered by Bill 4. 

 

It should be noted that the April 2015 SFL vs S. decision “grants” the right to strike as a Charter Right, which is still dangerous to workers’ interests because it means that the right could be taken away if the Charter is changed.  Also, it is interesting to note that previous attempts by Alberta workers to use the Charter to uphold their right to strike were rejected by the Courts,  which highlights the arbitrariness of Court decisions.  But workers have the right to strike regardless of what the Charter says or does not say.  The right to strike is an inalienable human right which accrues to all workers by virtue of their being human. It is not something that is “granted” (or not) by the powers that be.

 

The new Bill 7 legislation also states that the academic workers affected must, as part of their new right to strike, negotiate a collective agreement with their employer that designates what services are deemed essential and must be provided even in the event of a strike.  What are essential services?  The Alberta government’s labour site defines them very specifically:  “Essential services are those public services that if interrupted would endanger the life, personal safety or health of the public, or that are necessary to the maintenance and administration of the rule of law and public security.”  An example is how registered nurses still keep emergency medical services open during their strikes.

 

It is interesting to note that the presidents of University of Alberta, University of Calgary, and University of Lethbridge, in an October 21, 2016, statement, claim that they support academic workers’ right to strike.  However, they also raise the issue of essential services by adding that they think that in academia the definition of "essential services" must be greatly broadened.  It must be made so broad, in fact, they imply, that in practice striking in academic is literally unfeasible, e.g., they suggest that “essential services” should include researcher agreements with third parties, student exams, the welfare of lab animals, and who knows what else.  Accepting an all-encompassing definition of essential services would, of course, render the right to strike completely meaningless.

 

The practical issue, then, for academic workers is that they must be vigilant that the notion of “essential services” is not used as a tool to undermine their right to strike. Certainly none of the examples raised by the university presidents fall into any of the Alberta government’s categories, i.e., risk to life, personal safety, health, rule of law or national security.  Further, academic workers everywhere else in Canada have successfully negotiated reasonable essential services agreements that did not prevent them from striking, e.g., how to protect research animals.  It should be noted that, in fact, the SFL vs S decision specifically noted that a very expanded definition of essential services could be constituted as interference with the right to strike. 

 

What then should academic workers and their organizations do about essential services during their next rounds of collective bargaining?  A reasonable strategy under the new legislation would be for academic workers to start off by planning to stick to the Alberta government’s definition of essential services.  At the same time, these could be tweaked to address some key issues that present themselves in a post-secondary institution, also keeping in mind that not all PSEs are the same.  Further, those who are bargaining for the workers should be prepared to adamantly resist any attempts by the employer to expand the meaning of essential services beyond those clearly defined parameters when it is clear that the real aim of doing so is to attempt to undermine the right to strike.  

 

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