Bill 21 turns free and open PSE collective bargaining into a fettered and secret process
In late October, the Kenney government introduced Bill 21 (Ensuring Fiscal Sustainability Act, 2019), Tucked away at the back of Bill 21 is the entirely new Public Sector Employers Act (PSEA). The PSEA gives the government new powers to intervene directly into the collective bargaining process between specified government agencies, boards, and commissions (ABCs), including Athabasca University’s Board of Governors, and the unions that represent employees, including AUFA, AUPE, and CUPE.
How will the new PSEA work?
The PSEA lets the government impose binding bargaining directives on employers, including setting the duration of a collective agreement and the fiscal limits within which the employer must operate (Section 3(2)). But that’s not all. The PSEA makes these directives confidential, and bars ABCs from sharing their mandates with anyone, unless the Minister gives them explicit permission to do so (Section 4(2)). The PSEA also gives the government certain procedural powers (e.g., to demand information and direct compliance).
This is an astonishingly brazen effort at undermining the legitimacy of the collective bargaining process. In short, the government’s proposed PSEA empowers the Minister to dictate the bottom line of putatively independent ABCs when they are in bargaining. Given this government’s well-publicized efforts to reduce public-sector spending, these secret bargaining mandates will no doubt ensure “that the costs of collective agreements bargained by public sector employers are aligned with the Province’s fiscal realities” (Bill 21 Preamble).
What will this mean for bargaining?
It is highly likely that the government will use its new powers under the PSEA to try to force rollbacks in our compensation, in keeping with the government’s current efforts to roll other public-sector workers’ wages back at arbitration by 2% to 5%..
Secret bargaining mandates will have a deleterious effect on bargaining because, although AUFA and AU will be “negotiating” at the table, the true employer-side decision maker (the Minister) will be pulling AU’s strings from behind the scenes. This creates a car-dealer bargaining dynamic, wherein the employer can use “the manager in the back” as a reason to decline AUFA proposals.
For example, AUFA may ask for a modest cost-of-living adjustment (COLA), especially given that AUFA agreed to a two-year wage freeze during our last round of bargaining. AU can afford to give all its employees a COLA because, despite the operating-grant reduction in the 2019 budget, AU will almost certainly run another multi-million dollar surplus this year.
But AU is almost certain to not only refuse COLA, but to seek a wage rollback as well. (At least one Alberta PSE has already received direction to achieve a 2% rollback in faculty wages and AU is seeking a 2% rollback in support staff wages). Unless AUFA members are prepared to accept a wage rollback on top of an inflationary cut to their purchasing power, this will almost certainly lead to impasse and, ultimately, a work stoppage.
One way to avoid impasse (and subsequent strikes or lockouts) can be for the parties to hash out some sort of trade. For example, a salary freeze might be acceptable if it was offset by a significant increase in benefits or additional vacation days. This is the very definition of bargaining. Government-directed bargaining mandates reduce employers’ flexibility to explore such arrangements. And secret mandates undermine the trust necessary for such negotiations to occur.
Does the PSE violate the Charter?
There has been some suggestion that the PSEA may violate Section 2(d) of the Charter (freedom of association). The Supreme Court has previously ruled that workers are entitled to a meaningful process of collective bargaining. The government predetermining the outcome of bargaining via secret bargaining mandates almost certainly will create a hollow bargaining process.
It is likely unions will challenge the constitutionality of the PSEA. But such a challenge will take years to unfold in court. In the meantime, the PSEA will remain in operation. This, in turn, significantly heightens the risk of work stoppages, both at AU and in the broader public sector.
Eric Strikwerda, Chair
Bargaining Team
Bob Barnetson, Chair
Job Action Committee