Freedom of association and collective bargaining: are there justifiable limits?

• Author: McKay-Panos, Linda

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.

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. 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 some employees and trade unions from engaging in a strike, causing a strike or threatening to cause a strike. The PSERA provides for compulsory interest arbitration to settle any disputes about terms or conditions of employment; 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. They both 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.

Bill 45, the Public Sector Services Continuation Act, received Royal Assent on December 11, 2013 and 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...