2007 April Statement Responding to New LRB Protocol on Consultations with Government

Gil McGowan, President of the Alberta Federation of Labour, Tuesday, April 3, 2007

Just under four years ago, the Alberta government introduced and passed a controversial law that radically altered labour relations in the health care sector.

Bill 27 allowed the government to tear up dozens of freely negotiated contracts covering the pay and working conditions of literally tens of thousands of health care workers.

It also forced unions into run-off votes, denying many workers the right to choose the union they actually preferred.

And, finally, it removed the legal right to strike from thousands of union members in areas like community health and mental health - without ever attempting to justify how the public interest would be threatened if a speech pathologist or a physiotherapist or community health nurse walked a picket line.

Our concerns about the substance of the law were profound. In many ways, it was the most blatantly anti-union piece of legislation introduced by an Alberta government in more than 20 years.

But in addition to being strongly opposed to what the new law said and what it meant for health care workers in this province, we were also deeply troubled by the process that led to its introduction.

In particular, we were concerned about the role that the Alberta Labour Relations Board played in drafting the law.

The Labour Relations Board is supposed to be the impartial referee in all labour relations matters. It is supposed to be free from influence from both employers and unions. And it is supposed to be independent from government.

However, in the case of Bill 27, it became clear to us that the boundaries between the board and the government had become dangerously blurred.

In the process, we felt that the Board's ability to act as an independent and impartial third party had been compromised.

Our concerns about the LRB's role in Bill 27 prompted us to file numerous freedom of information requests aimed at getting a clearer picture of what really happened behind the scenes between government and the Board.

It also prompted two major unions - the United Nurses of Alberta and the Communications, Energy Paperworkers - to launch legal action.

In September of 2004, Justice Watson of the Alberta Court of Queen's Bench dismissed the unions' application for a judicial review of Bill 27 - not because their arguments lacked merit, but because so much of their case rested on things that had gone on behind closed doors. We simply did not have enough evidence.

However, in the months following the lower court decision, the evidence that had been missing started to pile up. As a result of freedom of information requests launched by the Federation of Labour, a picture of what happened in the run-up to Bill 27 began to emerge.

That picture featured a government, who was also the employer - either directly or through the Regional Health Authorities it created and appointed - using its legislative power to force concessions on health care workers that it couldn't win at the bargaining table. It featured a Labour Board helping the government draft a law which they knew would be used against health care workers. And it also featured Board officers sitting in judgment on cases involving the law they had just helped write.

The new evidence that we managed to gather - and the picture that evidence painted - caused unions across the province to ask a very fundamental question: how can we possibly have confidence appearing before a tribunal that had so clearly worked with a major employer to undermine the rights and interests of a large group of workers?

How could we possibly trust a referee who had been working with the other team?

Today was supposed to be our first day at the appeal court. We were eager to have our day in court and, as a result of the new evidence, we were confident about the outcome.

But instead of appearing before the appeal panel, we are here to respond to a major new development.

Earlier this morning the Labour Relations Board released a new protocol designed to more clearly define future interactions between the Board and the government.

The protocol begins by asserting that the only way for the Board to maintain the confidence of the parties appearing before it is to defend its independence from employers, unions and government.

It goes on to say that it is the responsibility of the government, not the Board, to develop policy and draft labour legislation.

It acknowledges that in some cases the government may approach the board for narrow technical advice on legislation or regulations. But it puts strict boundaries on what this kind of consultation would involve.

Most importantly, the protocol guarantees that all interactions between the board and government on either legislation or regulation will be fully and publicly disclosed.

No more veil of secrecy. No more backroom meetings. No more government behaving as if the Board is merely a branch of one of its departments. No more guessing about what's going on behind closed doors.

The protocol also guarantees that, in those cases where the board does give technical advice, the board officers involved will not be allowed to sit in judgment on the laws or regulations they gave advice on.

It also puts restrictions on the role of outside legal counsel - so they can't act for employers one day and as advisor to the board the next.

With this document, the Alberta Labour Relations Board has gone from having essentially no clear internal rules dealing with its independence from government to having some of the best rules in the country.

We may still have some of the worst labour laws in Canada - and we do. But this protocol makes it clear that the Board's only role will be to interpret those bad laws, not help write them.

The importance of this change cannot be overstated. In a province where working people can't count on the Legislature to consistently protect their rights in the workplace, at the very least they have to have confidence that the referee isn't working against them as well.

The Board now has the tools to say "no" when the government comes calling. They now have the tools to tell say to the government, "we won't help you with your dirty work."

We expect the Board to aggressively use these new tools when appropriate.

We also have expectations for government. Now that clear boundaries have been set, we expect the government to respect those boundaries and to not compromise the independence of the board.

As a result of this new protocol, which has been signed by the Board chair and all the vice-chairs and which will be signed by all future vice-chairs, we at the Alberta Federation of Labour, the United Nurses of Alberta, and the Communication Energy Paperworkers union have collectively decided to withdraw our court appeal.

We have pursued this case tenaciously for the past four years. We have invested significant amounts of time, money and resources. And we have persevered in the face of efforts to discourage us.

But our goal was never to put trophy heads on our wall. Our goal was to improve public policy. Our goal was to defend and guarantee the independence of the Labour Board from undue influence from government and employers. And our goal was to restore confidence among all those who have to appear be before the Board.

Looking at the protocol released by the Board today, we are satisfied that our major goals have been achieved. As a result, we see no reason to proceed with the court case.

From our perspective, this is a victory for working people because we can now have more confidence in the tribunal that hears our concerns and complaints.

It is a victory for the Labour Board itself because it more clearly defines and defends its independence from government.

And it is a victory for the broader public because it sets in place a new model for governance which we think can and should be adopted by other public boards and agencies.

If the Stelmach government is sincere in its efforts to promote transparency and accountability, we think this protocol is a very good place to start.

Building a better model of governance - one that the public can really have confidence in - was our goal from the start.

That's why, last year, we at the AFL commissioned an expert study on the situation related to Bill 27. That study was done by Professor Lorne Sossin, a highly respected authority on administrative law from the University of Toronto.

It's clear to us that the Board took Prof. Sossin's recommendations to heart.

Prof. Sossin talked about the importance of maintaining a clear distance between government and administrative tribunals such as the LRB. He talked about the importance of rules to guarantee that distance. And he talked about the importance of transparency and full public disclosure.

The board may not have used the exact words proposed by Professor Sossin, but the spirit of his recommendations has clearly been given life in the Board's protocol.

As a result of these new rules, the Board has gone a long way to reestablishing confidence among the public and stakeholders.

Obviously, we would have been happier if Bill 27 had never been introduced. But we can't re-write history. We can, however, make sure that we don't repeat it.

If these rules had been in place four years ago, the government would not have been able to enlist the Board in its campaign to gut health care labour laws. We may still have gotten those laws - but their introduction would not have triggered a crisis in confidence in the Labour Board.

With the Board's new protocol, we consider our case against the Board's conduct on Bill 27 closed.

We can now turn our attention where it really belongs - to the bad laws we have on the books and to the government that has passed those laws and still defends them.


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