Canada: Bill 7: An Act To Enhance Post-Secondary Academic Bargaining

Last Updated: December 12 2017
Article by Kevin Feth, QC and Jason Kully

Bill 7 passed first reading in the Alberta Legislature on April 6, 2017. The Bill is part of the Government of Alberta's response to the Supreme Court of Canada decision that guaranteed workers the right to strike and comes after consultation with post-secondary stakeholders in 2016. If passed, the legislation will amend the Post-Secondary Learning Act and the Labour Relations Code.

In broad terms, Bill 7 will:

  • Bring academic staff and academically employed graduate students at public universities, public colleges, and technical institutes under the Labour Relations Code, thereby granting academic staff associations and graduate student associations all the rights and remedies that are granted to unions under the Code, including the right to strike;
  • Recognize a new category of employees, being postdoctoral fellows, and create a postdoctoral fellow association while also granting this association all the rights and remedies granted to unions under the Code;
  • Grant public post-secondary institutions the right to lock-out employees;
  • Require public post-secondary institutions to negotiate essential services agreements, and
  • End compulsory interest arbitration, but permit parties to use voluntary arbitration.

Field Law has identified that additional key impacts of Bill 7 include:

A. No Differentiation Between Public Post-Secondary Institutions

All public universities, public colleges, and technical institutes in Alberta, and all the academic staff, academically employed graduate students, and postdoctoral fellows at these institutions, are now subject to the same requirements under the Labour Relations Code.

Private post-secondary institutions fall outside the ambit of Bill 7 as they are not "public post-secondary institutions," but the Labour Relations Code already applies to such institutions.

B. Strikes and Lock-outs

Academic staff, graduate student employees, and employed postdoctoral fellows will be able to go on strike and public post-secondary institutions will be permitted to lock-out their employees. These strikes and lock-outs will be subject to the requirements and restrictions contained in the Labour Relations Code.

Picketing will be subject to the Labour Relations Code, which means that academic employees can picket at each employee's "place of employment." However, the Code does not permit picketing inside of a struck workplace. The picketing is limited to the perimeter of the place of employment.

Picketing will be subject to many other restrictions found in the Code. Picketing must be peaceful and carried out without other unlawful acts and the Labour Relations Board can regulate picketing by determining who may picket, the number of persons who may picket, and the time and locations at which picketing may occur.

C. Essential Services

Public post-secondary institutions will be required to negotiate essential services agreements with the bargaining agents as part of the collective bargaining process. This requirement must be completed prior to any strike or lock-out.

The definition of "essential services" found in Division 15.1 of the Code will apply to the public post-secondary academic sector without amendment. 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.

As discussed during the consultation process, this definition is not broad enough to capture many of the concerns raised by post-secondary institutions. For example, a labour disruption creates unique risks for the post-secondary institution's property and the intellectual property of the institution and its academic staff, academically employed graduate students and postdoctoral fellows. The preservation of chemical and biological material, as well as research activities and data and clinical trial information may all be adversely affected by a labour disruption.

Section 95.41(3) of the Code, which will apply to the public post-secondary sector, prohibits the use of replacement workers during a strike or lockout. Other persons who are not members of the bargaining unit may perform the work but the availability of existing employees and contractors who are able to perform the work is typically severely limited in public post-secondary institutions.

D. Designation/De-Designation

The post-secondary institutions will retain the authority to designate (and de-designate) who are academic staff members, but that authority will be subject to two important changes: i) expanded consultation and ii) review by the Labour Relations Board.

i. Consultation

Consultation will now be required before any appointment to the academic staff, as well as any change in designation.

Consultation with the academic staff association and with "any other bargaining agent representing employees affected by the designation" will be statutorily required whenever categories of employees or individual employees are designated as academic staff members. The same consultation will be required prior to any change in an existing designation.

The Bill does not explain what "other bargaining agent affected by a designation or change in designation" means or the consequence of failing to adequately consult. At a minimum, other bargaining agents who have a bargaining relationship with the institution might assert a greater role in defining the academic staff.

Previously, consultation was required at common-law only when a change in designation was contemplated. At common-law, consultation means more than simply notice. It requires a full discussion and a meaningful exchange of views, questions, and answers. Such meaningful consultation would almost certainly be required under the statutory regime.

As the hiring of professors and other staff generally comes with a designation as an academic staff member, Bill 7 requires consultation with the academic staff association and with any other bargaining agent representing employees affected by the designation prior to the hiring of the individual.

It is unclear whether the consultation obligation will be satisfied by creating hiring policies, procedures, and protocols in cooperation with the academic staff association and other affected bargaining agents for general application, or whether consultation will be required for each individual decision. It is also unclear whether the consultation will be satisfied by having a representative from the bargaining agent on a selection committee. The common law meaning of consultation suggests a more rigorous consultation process.

ii. Appeal to the Labour Relations Board

The Labour Relations Board will now be the final adjudicator of whether a category of employees or individual employees are academic staff members. Any person or bargaining agent affected by a designation or change in designation will be able to apply to the Labour Relations Board for a determination about who is an academic staff member. The Board's decision will be final and binding.

The right to seek a review from the Labour Relations Board will not be limited to the bargaining agent or the individual or group of individuals being designated or de-designation. Any "person affected" by a designation or change in designation will be allowed to apply, including potentially other bargaining agents representing non-academic staff members and any academic employee concerned about the institution's approach to defining the academy.

A "failure to designate" will also be subject to review, inviting the possibility that academic administrators and non-academic staff members may challenge exclusion from the academic staff.

Designations (and de-designations) that occurred prior to Bill 7 will also be subject to review. This retroactive review has no time limit.

Bill 7 includes some criteria that must be considered by the Labour Relations Board in reviewing a designation decision. These include:

  1. the history of, and the employer's policies concerning, designations within the public post-secondary institution;
  2. the results of any consultation with academic staff association and with other affected bargaining agents;
  3. the potential for significant conflict with the managerial responsibilities of the category of employees or individual employees, in the context of a collegial governance structure;
  4. any arrangements made for any transition in status of categories of employees or individual employees;
  5. the submissions and interests of any other bargaining agent representing employees of the public post-secondary institution affected by the designation; and
  6. any other factor the Board considers relevant.

The criteria suggest that the public post-secondary institution will be required to rationalize and articulate to the Labour Relations Board the institution's philosophy in defining the scope of the academy.

None of the criteria requires the Labour Relations Board to examine whether there is a common interest among the members of the academic staff. This suggests that the academic staff may be comprised of diverse and distinct groups. As a consequence, the academic staff need not be equated with the professoriate, the academy, or teaching and research staff.

It unclear how "significant conflict with the managerial responsibilities" will be interpreted and whether this will narrow an institution's ability to exclude managerial staff.

No procedure is identified for the Labour Relations Board's review of a designation decision. It is unclear whether deference would be extended to the institution's designation decision, whether written reasons would be required for the institution's decision, or whether the consultation process must be documented.

E. No Compulsory Binding Arbitration

Any dispute arising in the negotiation of a collective agreement after April 6, 2017 will not be referred to binding arbitration. Similarly, any provision in an existing collective agreement that requires binding arbitration will be unenforceable. However, any arbitration that started before April 6, 2017 to resolve a dispute in the negotiation of an agreement will still be resolved by way of compulsory binding arbitration, unless the parties agree to terminate the arbitration.

There is no transition period in the Bill for bargaining which has already commenced. The ability to strike and lock-out will not come into effect until the Bill receives royal assent but compulsory binding arbitration is no longer possible.

Voluntary binding arbitration under the Code will still be possible.

F. No Choice of Bargaining Agent Until July 1, 2022 or Later

The current academic staff associations and graduate student associations will remain as the designated exclusive bargaining agents until at least July 1, 2022. No other union will be allowed to seek to become certified as the bargaining agent and there is no risk of the modification or revocation of the current bargaining rights.
Once the postdoctoral fellows association is created, it will be the designated bargaining agent until at least July 1, 2022.

All these bargaining agents will be deemed to be a "trade union" for the purposes of the Code. The majority of the sections of the Code, with the exception of Divisions 4 through 9, will therefore apply to the bargaining agents.

G. Definition of "Employee"

All academic staff members, academically employed graduate students, and postdoctoral fellows will be included as an employee of the public post-secondary institution. There will be no managerial or professional exclusion from the definition of employee.

An "academically employed graduate student" will be defined as a graduate student employed as a teaching or research assistant.

H. The "Board of Governors" is the Employer

The "Board of Governors" of the public post-secondary institution is defined as the "employer" for the purposes of the Code. There is no explanation for why it is the Board of Governors and not the institution itself.

I. Employment Standards Code

The Employment Standards Code will continue to not apply to academically employed graduate students of a university, postdoctoral fellows of a university, and the academic staff members of a public post-secondary institution.

J. Collective Agreements

Going forward, all collective agreements between public post-secondary institutions and bargaining agents will be required to comply with the requirements of the Code.
There will no longer be indeterminate agreements between public post-secondary institutions and the academic bargaining agents. An existing indeterminate agreement will be deemed to operate for 3 years beginning on the date the Bill receives royal assent, unless a shorter period is agreed on by the parties.

K. Unfair Labour Practices and Duty of Fair Representation

Division 23, "Prohibited Practices," of the Code will apply to the relationship between academic bargaining agents and public post-secondary institutions.

Institutions and bargaining agents will be able to make allegations about the other engaging in an unfair labour practice. The Board will be the adjudicator of such a complaint.

The academic bargaining agents will be subject to a statutory duty of fair representation. While this duty existed at common law, the Labour Relations Board will be easier to access and will provide a simpler process for association members to make complaints. The Code permits the Labour Relations Board to issue remedies against employers in response to a duty of fair representation complaint against a union, which does not exist at common law. Consequently, public post-secondary institutions might be pulled into duty of fair representation proceedings from which they were previously immune.

It is expected that Bill 7 will be enacted in this spring session of the Legislature. It will have a significant impact on all public post-secondary institutions. Field Law will continue to monitor the status of the Bill and will provide updates on any amendments which may be introduced.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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