Critics claim two new Alberta labour laws infringe the constitutional rights to freedom of expression and freedom of association. A review of both laws and recent Supreme Court of Canada (“SCC”) decisions reveals where the battlegrounds will likely lie if either or both of the new laws are challenged.

Alberta’s majority Conservative government passed Bills 45 and 46 in the evening on December 4, 2013, the final day of Alberta’s fall legislative session. At the time of blog posting, neither law had come into force. The Public Sector Services Continuation Act (Bill 45 or the “PSSCA”) may be challenged as an infringement of the freedom of expression, a right protected in the Canadian Charter of Rights and Freedoms (the “Charter”). The Public Service Salary Restraint Act (Bill 46 or “PSSRA”) may be challenged as an infringement of the freedom of association, also a Charter protected right. 

Bill 45 - The Public Sector Services Continuation Act

By way of background, it is already illegal for all public service employee unions in Alberta to strike, and it is illegal for certain public service employee unions, such as those representing firefighters and hospital workers, to threaten to strike. The PSSCA makes it illegal for all public service employees to threaten to strike, and section 4(4) of the PSSCA makes it illegal for anyone, whether in a public service employee union or not, to “counsel” others in such a union to strike or threaten to strike. The fine for violating section 4(4) for persons not in a public service employee union is $500 per day of the contravention.

Less than three weeks ago, the Supreme Court of Canada (“SCC”) unanimously declared Alberta’s Personal Information Protection Act, SA 2003, c p-6.5 (“PIPA”) invalid, because it represented an unjustified infringement of the right to freedom of expression. In the decision—Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (“United Food”)—the SCC made a number of strong statements in favour of freedom of expression in the labour relations context that would be cited in any challenge to the PSSCA.

If called to defend the PSSCA in court, the Alberta government will no doubt cite the illegal strikes that occurred at the Edmonton Remand Centre in the spring of 2013 and argue that any limit on freedom of expression that section 4(4) may present is justified as a measure of preserving public order, health and safety.

PSSCA challengers may counter with the argument that the PSSCA contains provisions, such as severe fines and mandatory liability fund payments and union dues withholdings, that make it financially difficult, if not impossible, for public service employee unions to sustain a strike, and, as such, the harmful effects of the section 4(4) prohibition are not proportional to the harm the provision is designed to protect against.

Bill 46 – The Public Service Salary Restraint Act

The PSSRA has a narrower focus than the PSSCA. The PSSRA addresses the current collective bargaining impasse between the Alberta government and the Alberta Union of Provincial Employees (“AUPE”), which constitutes roughly one-fifth of all public service employees in Alberta. The dispute has been ongoing since the previous collective agreement between the parties expired in March 2013. The PSSRA does not apply to future AUPE agreements or to agreements relating to any other unions.

As the law stood in Alberta prior to the PSSRA, when a public service union employee in Alberta and the government were at a collective bargaining impasse, either party or both could apply for compulsory binding arbitration to settle the dispute. This legislation was perceived as a compromise for prohibiting public service union employees from striking.

However, the PSSRA eliminates AUPE’s statutory right to apply for compulsory binding arbitration in its current collective bargaining dispute with the government. The PSSRA imposes employment terms on AUPE members for the next four years. These terms will be imposed on January 31, 2014 (or March 31, 2014, if the Alberta Cabinet grants an extension) unless the parties reach an agreement before those dates.

In Ontario (Attorney General) v Fraser, 2011 SCC 20 (“Fraser”), the SCC stated the Charter right to associate means the government must not substantially interfere with an individual’s right to associate with others in order to achieve collective goals. More specifically, the government must not prevent people from associating and making representations to employers, which the employers must consider meaningfully and in good faith.

However, the SCC rejected the idea that the right to associate goes as far as guaranteeing unions the right to a process that settles bargaining disputes. That is, the SCC stated unions are entitled to a meaningful process of negotiation, but they are not entitled to any specific process, and, in any event, they are not entitled to binding arbitration when an impasse occurs.

In light of Fraser, the essential question is: what does it mean to consider a proposal in good faith if the party required to consider the proposal can then impose terms? Commonwealth precedents in the context of contract law indicate the term “good faith” is difficult to enforce unless it is tied to an external, objective standard.

As with all cases, the result of any PSSRA challenge would pivot on the details. Other recent wage freezes in the public sector support the government’s position, as does the fact the parties had negotiated for 12 days and had gone to mediation. Also helping the government is the fact the PSSRA provides AUPE with more time to make further representations to the government. Further, the government can cite SCC precedents that state a government’s budgetary concerns are factors for courts to consider when deciding whether a Charter infringement is justified.

AUPE can counter by citing Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 and stating the PSSRA imposes terms on AUPE, and, as such, AUPE’s right to achieve collective goals through a meaningful process and good faith bargaining has been denied. Further, AUPE can claim the PSSRA prejudices AUPE members, who were relying on a legislated bargaining process that had been in place since 1977 and was unilaterally withdrawn at a late stage in the process, and, as such, AUPE members were denied a meaningful process and good faith bargaining.

The SCC recently granted leave to hear a constitutional challenge to a Saskatchewan law, the Public Service Essential Services Act, which introduced restrictions on the ability of public sector workers to strike. The SCC’s decision in that case will likely provide insight with regard to the approach the SCC would take to any PSSCA orPSSRA challenge.

In any event, with the ink barely dry on the legislation, the only certainty is that any PSSCA and PSSRA challenges, even if they were made today, would not reach the SCC for many years.