In the decision of Alberta Health Services v the Alberta Union of Provincial Employees, 2023 CanLII 61927 ("AHS v AUPE"), the Alberta Labour Relations Board (the "Board") issued a one-month suspension of union dues remittances in response to an illegal wildcat strike by healthcare workers during the COVID-19 pandemic. The Board further upheld the constitutionality of section 114 of the Labour Relations Code (the "Code").
The Board describes the circumstances leading up to the illegal strike as a pot of water "simmering" up to a boil. Alberta Health Services ("AHS") and the Alberta Union of Provincial Employees ("AUPE") were engaged in collective bargaining when the government declared a public health emergency arising from the COVID-19 pandemic in March 2020. Given the employees' status as "essential" workers under the Code, they could not legally strike without first reaching an "essential services agreement" with AHS.
Leading up to the strike, COVID-19 case rates and hospitalizations were climbing, there were no vaccines, and many staff were absent due to illness, placing great strain on the healthcare system. AUPE proceeded to host a town hall where they told their members that the steps for a legal strike were not met, although they would nonetheless support members engaged in an illegal strike. Still, the government announced a planned long-term staffing reduction.
On October 26, 2020, the situation "boiled over" and around 2,200 workers at over 70 health care facilities across Alberta conducted a half-day wildcat strike, amounting to over 14,000 hours of scheduled work lost. The Board found the strike had a "significant impact" on the province's health care system, including causing the postponement of surgeries, cancellation of treatments, and delayed patient care. The evidence before the Board demonstrated AUPE fully supported the strike and indeed encouraged it to continue.
Suspension of Union Dues for Illegal Strike Activity
Section 114 of the Code empowers the Board to suspend the deduction/remittance of union dues for a period of 1 to 6 months, in response to an illegal strike. AUPE admitted it was not in a legal strike position at the time of the wildcat strike. However, the decision to order a dues suspension is discretionary, therefore the Board adopted the two-part test established in Provincial Health Authorities of Alberta v AUPE,  Alta LRBR 187 ("PHAA #1"), a case involving another illegal strike by AUPE members in 2000. First, the Board decides whether it should order a dues suspension. Then, the Board determines the length of the suspension. This framework considers the following factors at both steps: the history of the relationship between the parties; the level of sophistication; the conduct of the parties; and deterrence. The weight of mitigating factors are considered when determining the length of the suspension.
The parties had a longstanding and sophisticated bargaining relationship. AUPE clearly understood that neither bargaining unit was in a lawful strike position, and given its previous penalty in the PHAA #1 case, AUPE knew its actions contravened the Code. In terms of the parties' conduct, while there was no evidence proving AUPE planned the strike, once the strike was underway, AUPE gave its full support to the strike and encouraged its continuation. AUPE "knew the pot was starting to simmer". AUPE failed to take meaningful steps to "turn down the heat, but once things boiled over and a strike was underway, it continued to stir the pot". The strike resulted in the cancellation of surgeries, exacerbating an already bad situation, and was encouraged by AUPE in public and private communications. The Board concluded that the risks associated with health sector strikes makes it important and necessary for the Board to "send a message" that this kind of conduct would not be tolerated.
After deciding to order a dues suspension, the Board turned to the issue of deciding the suspension's length. In concluding that a one-month suspension was appropriate, the Board stressed how the strike endangered the wellbeing of Albertans by placing additional strain on a healthcare system already reeling from the pandemic. However, the strike was short-lived and not premeditated, unlike in PHAA #1, which saw AUPE receive a two month suspension. Relatively few employees participated, and the strike occurred during a stressful time where emotions were high. AUPE estimated a month-long order would cost approximately $1.6 million in lost dues.
Constitutionality of Section 114
The Board had previously upheld the predecessor provision to Section 114 in AUPE v PHAA et al,  Alta LRBR 230 ("PHAA #2"), finding that the provision did not violate the freedom of association guaranteed by the Charter of Rights and Freedoms (the "Charter"), and that the provision would otherwise be saved under section 1 of the Charter. However, the Board recognized the "sea change" in jurisprudence on section 2(d) since PHAA #2, including the Supreme Court's establishment of a Charter right to collective bargaining in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia,2007 SCC 27 ("BC Health Services"). BC Health Services set a two-part test to determine whether legislation "substantially interferes" with the section 2(d) right to collective bargaining:
- With respect to the subject matter of a particular instance of collective bargaining, will interfering with bargaining over that issue affect the ability of unions to pursue common goals collectively?
- Does the legislative measure or government conduct in issue respect the fundamental precept of collective bargaining – the duty to consult and negotiate in good faith?
Applying the BC Health Services test, the Board found Section 114 did not substantially interfere with workers' collective bargaining rights. Section 114 is a method of enforcing compliance with other Code provisions that prohibit or require certain actions for a strike to be lawful. For the employees at issue, they were required to negotiate and file an essential services agreement, given their status as essential workers. The intent of Section 224 is not one of "union busting", but of enforcing compliance with fundamental provisions in the Code. The Board held this is a valid purpose. While the remittance of dues is important to unions, an order under Section 114 is merely temporary, suspending the operation of a collective agreement and only triggered at the Board's discretion. The Board reasoned that Section 114 is not a legislative provision that overrides or imposes a term into the collective agreement, which would invite more scrutiny under the Charter.
AHS v AUPE is the first Board decision interpreting the re-introduction of Section 114 after its repeal in 2017. The Board affirms the PHAA #1 test, demonstrating that unions will face consequences for wildcat strikes, even where there was no active organization to facilitate and plan the strike. Rather, encouraging and providing public support of the activity will violate the Code's prohibition on "causing" an illegal strike.
However, given the serious nature of this case and the one-month due suspension, and the mere two-month suspension ordered in PHAA #1, this raises the question of what level of misconduct is necessary to precipitate a longer suspension, including whether a six-month suspension would ever be possible. Given the Board's emphasis on the short duration of the strike being a mitigating factor in determining the suspension's length, we believe the Board would likely only award a longer suspension in egregious cases of illegal conduct that is concerted, planned, and lasts well beyond a half-day.
Further, AHS v AUPE raises the question of whether a dues suspension is a sufficient remedy to deter wildcat strikes, given the individual workers engaged in the illegal activity benefit by not having to remit dues to their union. Some commentators have suggested this may actually result in encouraging wildcat strikes, opposite to the government's intentions when re-introducing Section 114 in 2020.
Note: AUPE has appealed the Board's decision and the Alberta Court of King's Bench has scheduled the matter for May 1, 2025.
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