Arbitrator Allen Ponak (Past President NAA) describes the amendments recently enacted to the Labour Relations Code of the Province of Alberta, Canada.
On June 7, 2017, the legislature of the Province of Alberta amended its Labour Relations Code. In Canada, unlike the United States, primary jurisdiction over the legal regulation of labour relations, both in the private and public sectors, lies at the provincial level. Under Canada’s constitution, the federal Canada Labour Code governs labour relations in a handful of strategic industries including transportation (trains and planes), telecommunications (TV, radio, cell phone providers), nuclear facilities, ports, and banking. The federal law covers about 10 percent of the national workforce. Provincial legislation governs all the rest. Canada’s division of legal authority in labour relations is almost the converse of the USA approach where the NLRA covers the great majority of workers nationally.
In theory, the devolution of labour law to 10 provinces and 3 territorial governments could lead to significant legal variation across Canada, complicating life for companies, and their unions, that operate facilities in several provinces (supermarkets or gas refiners, for example). In practice, there is a common core of principles, derived from the Wagner Act model, that underlie labour law across the country. Arguably some provincial labour statutes could be construed as slightly more union friendly and some as slightly more employer friendly but the common core of values predominate and all laws share far more similarities than differences.
The changes introduced in Alberta should be seen in this context. Governed for 40 years by a right-of-center conservative party, Alberta’s labour law was more employer friendly than that of most other provinces. No surprise then that the election of a left of center party with strong ties to organized labour would move Alberta labour law away from the employer friendly side of the spectrum. But with very rare exception the 2017 changes are hardly radical and keep the province’s labour laws largely in step with the underlying common core values found elsewhere in Canada. That said, there is little question that Alberta’s labour law is now firmly on the union friendly side of the continuum.
This change attracted the most attention. Under the old law, secret ballot elections were required before certification. Under the new law, a union can be certified without a vote if it can show more than 65 percent support through signed cards. A vote is required if a union can show between 40 and 65 percent support. Whichever process applies, there are tight statutory timeliness to ensure a swift resolution to the certification application (within 25 business days). The approach adopted in Alberta has been used for many years in a number of other provinces. It is a compromise between certification by cards only if the union can sign up a majority of workers and mandatory votes regardless of the union support level. It will make unionization easier in a province with the lowest union density in Canada, about 24 percent.
First Contract Binding Arbitration
If a newly certified union and employer are unable to achieve a first collective bargaining agreement, either party can apply to the Alberta Labour Relations Board (ALRB) to have a first contract imposed through arbitration. This is an entirely new provision for Alberta, but it an approach that has been used in several other provinces for many years. The ALRB has discretion whether to grant the application for first contract binding arbitration and it will be interesting to see the criteria the board develops. This change favours newly certified unions and make it easier for them to get an all-important first contract.
Unfair Labour Practice Remedies
The new law gives the ALRB a broader set of remedies, bringing Alberta in line with other provinces. For example, the board can certify a union as a remedy to particularly egregious unfair labour practices if the board concludes that, except for the employer interference, the employees would have certified. Other provinces grant their labour relations board similar remedial authority. As elsewhere, tight timelines are mandated, especially for applications involving dismissals allegedly for union activity.
Automatic Dues Payment (Rand Formula)
Under the amendments, a certified union is now entitled by law to collect union dues from every member of the bargaining unit. In Canada this is known as the “Rand Formula”, named after Justice Ivan Rand who invented it as a solution to a 1949 Ford Motor Company strike in Ontario. Whether employees are also required to join the union (i.e. a union shop) is still subject to collective bargaining. Under the previous Alberta legislation, dues payment and union membership were both subject to negotiations. As a practical matter, most contracts contained at least a Rand Formula. A statutory minimum requirement of dues payment for bargaining unit members is found in a number of other provincial labour statutes. The Canadian approach is in sharp contrast to USA right to work laws which prohibit compulsory dues payment or membership. There are no right to work laws anywhere in Canada.
Workers who are in a “position of economic dependence” and “under an obligation to perform duties which more closely resembles the relationship of an employee than that of an independent contractor” are defined as “employees” under the new law and eligible to be unionized. While labour boards in Alberta and other provinces have already been interpreting dependent contractors as employees with the right to unionize, the new law makes these rights explicit.
Marshalling of Disputes
This is a bold new wrinkle to Canadian labour law. It is not uncommon for unionized employees to file a grievance through their union and at the same time file complaints on substantially the same set of facts to human rights tribunals, privacy commissions, provincial ombudsman, safety and health agencies, and/or workers compensation boards. These multiple applications can be a nightmare for both unions and employers. Under the new Alberta law, either the union or employer can apply to the labour relations board to issue an order that the complaint be heard through arbitration or by a specific tribunal, but not simultaneously in multiple forums. The ALRB must assess marshalling applications “expeditiously”.
As a result of several Supreme Court of Canada decisions, Canadian labour arbitrators have the authority (and obligation) to apply human rights and employment related statutes (safety and health legislation, for example) even if the collective bargaining agreement is silent on that subject. How the ALRB will apply its new marshalling powers is as yet unclear, but it may well result in arbitration becoming the forum of choice for disputes that also have an external law component. Complaints filed in other forums would be held in abeyance and the result of the arbitration would, in theory, bring finality to the dispute. In practice, the new marshalling provisions may prove messy, as the law in this area is still evolving.
A number of changes will affect arbitration.
Labour arbitrators have been given the statutory authority to relieve against CBA time limits in appropriate circumstances. The power of arbitrators to relieve against time limits is found in other provinces, but was not permitted under the old labour code.
The new law makes explicit the power of arbitrators to order production of documents and particulars at the request of either party prior to the commencement of the hearing. This change pre-empts the squabbling that sometimes occurred about whether an arbitrator had authority to make such rulings prior to the formal commencement of proceedings. It brings Alberta law in line with the rest of Canada.
The new law makes clear that arbitrators have the authority at any stage of the proceedings, if the parties agree, “to assist the parties in resolving the matter in dispute”; i.e. mediate. Furthermore, the assistance rendered is “without prejudice to the power of the arbitrator … to continue the proceedings” if efforts to resolve the dispute are not successful. This change simply codifies existing practice.
The new law specifies that an arbitrator “may interpret, apply and give relief in accordance with any enactment relating to employment matters notwithstanding any conflict between the enactment and the collective agreement”. Again, this change simply codifies an existing requirement, based on Supreme Court of Canada decisions, that human rights and employment related statutes are to be treated as if they were part of the CBA. Arbitrators have the authority to apply these statutes, including their remedial reach, in a grievance arbitration decision.
The most consequential change for labour arbitration is in appeal procedures. Similar to most other provinces, under the old law, any challenge to an arbitration decision was decided by courts applying a standard of “reasonableness”. The new law directs appeals to the Alberta Labour Relations Board and specifies two grounds for overturning an arbitration award: 1) a party to the arbitration was denied a fair hearing; or 2) the award is unreasonable because of “lack of intelligibility or transparency, or because it falls outside the range of possible acceptable outcomes that are defensible in respect of the facts and the law”. These criteria reflect those already used by the courts.
The idea behind having the ALRB hear appeals rather than the courts is to reduce delay and to leave review in the hands of those with expertise and experience in labour law and labour relations. The new law largely mirrors the long established approach in the Province of British Columbia where the first level of appeal is to the labour board. Like in BC, challenges to the decision of the ALRB on a “question of jurisdiction or law” go directly to the provincial Court of Appeal, the second level of appeal. The impact of this change is unclear. Currently, approximately 7 percent of arbitration decisions are appealed and of those, few are successful. It remains to be seen what impact, if any, moving appeals of arbitration decisions from the courts to the labour board will have.