UNA shares recommendations with Alberta Government for new Essential Services laws

United Nurses of Alberta has submitted recommendations to the Government of Alberta’s review of the province’s essential services legislation.

In addition to the written submission, UNA representatives participated in two round table discussions this week related to essential services for employees working in long-term care and health care. These sessions were organized by the provincial government and involved unions and employers.

The government has until April 1, 2016 to amend the current Labour Relations Code. 

Here is the executive summary from UNA’s submission to the essential services legislation review:

Recent legal decisions, including an important ruling by the Supreme Court of Canada, have significantly restricted the ability of governments to use legislation to impose blanket bans on strikes or impose broad definitions of “essential services” that have the same impact. By ruling that members of health care unions have a constitutionally protected right to strike, the Supreme Court forced the Government of Alberta to begin a process of rewriting laws governing labour relations in Alberta. 

UNA believes the ruling from the Supreme Court constitutionally protects the premise that all workers have a right to strike until such time they are deemed by the government, employer and union to be providing an essential service. 

UNA also believes aspects of its traditional approach to ensuring the delivery of essential services during strikes will be helpful to the government in drafting new legislation that protects the public and patients at the same time as it respects the constitutionally protected rights of health care workers. 

In addition, UNA proposes recommendations for a framework for drafting Charter-compliant essential services legislation and a series of specific recommendations for changes to the Alberta Labour Relations Code that would safeguard the rights of working people while ensuring the delivery of essential services during labour disputes. 

Such a framework must make it possible for issues to be addressed on a sector-by-sector or workplace-by-workplace basis by individuals who are familiar with the sector or workplace, the services provided and the effect of the withdrawal of those services. In this spirit, UNA approached Alberta Health Services to prepare joint recommendations to this review, but was rebuffed. 

In its submission to the Essential Services Legislation Review, UNA recommends 13 specific changes that will improve the Alberta Labour Relations Code for unions, employers and the government. 

1. Every employee has the legal right to strike until it is determined otherwise. 

2. No later than 60 days prior to the earliest date to serve notice to bargain, the employer, the government or the union may make application for some or all of the affected employees to be deemed essential. If no application is made 60 days prior to the beginning of the time period in which a union or employer is able to give notice to bargain, none of the affected employees shall be deemed essential. 

3. If an application to deem employees’ services essential is made, the applicant must name the employee, unit or workplace and provide a complete explanation of the rationale for seeking the designation. 

4. Upon receipt, the union and the employer will meet and negotiate whether the employee or employees should be deemed to be providing essential services.

5. Should the union or the employer object to the designation, a tripartite board will hold a hearing within 7 days and issue a decision within 72 hours of the end of the hearing. The tripartite board shall base the decision on the question: “Is this worker needed to prevent a clear and imminent threat to the life, personal safety or health of the whole or part of the population?”

6. Those deemed essential will not be permitted to strike. The current collective agreement in place at the time will continue to apply to those employees and the employer until a new collective agreement is ratified by the union and the employer. 

7. If more than 75 per cent of a unit is deemed essential, the entire unit will be deemed essential. 

8. In the event an entire unit is deemed essential, the parties will continue to negotiate and use mediation. If the dispute is not resolved through negotiation and mediation it will be resolved at interest arbitration. 

9. No employee who has not been declared essential shall be disciplined for refusing to cross a legal picket line, nor will any employee be disciplined for refusing to perform work normally done by employees on a legal strike, or for refusing to perform non-essential duties during any legal strike. 

10. In the event an employee in a non-striking bargaining unit, chooses not to cross a picket line, the employer, government or union may make application for them to receive essential services designation. 

11. Rules will be established governing the use of replacement workers during a strike similar in intent and wording to the replacement worker regulations used by the British Columbia Labour Relations Board: 

Just as the picketing provisions limit the lawful things employees can do during a strike or lockout, the replacement worker provisions of the Code limit what an employer can do. Employers are prohibited from using newly hired employees to replace employees who are engaged in a legal strike or who are locked out. 

An employer can continue to operate during a labour dispute by using non- bargaining unit personnel at that operation. Management staff cannot be transferred or used from other operations or facilities of the employer, however, unless they were transferred before the notice to commence collective bargaining for the new agreement was given. 

Any person who is not in the bargaining unit at the operation has the right to refuse to do work of bargaining unit members during a strike or lockout. To protect this right, employers are not allowed to penalize or discipline employees who refuse to do such work.” (Source: Chapter Six, Guide to the Labour Relations Code of the Province of British Columbia) 

12. Provisions for First Contract Arbitration, as exists in seven other provinces across Canada, will be legislated. 

13. Eliminate the current regulations that determine which employees have the right to associate with other employees for the purposes of collective bargaining. The current four functional bargaining units
do not reflect the reality of a workplace where four classes of professional nurses exist (Licensed Practical Nurses, Registered Nurses, Registered Psychiatric Nurses, Nurse Practitioners). 

In Alberta, the Labour Relations Board and regulations have determined that “auxiliary nursing care” must be a separate bargaining unit. Dividing direct care and auxiliary care nurses into two separate bargaining units fails to recognize the reality of today’s health care environment. In addition, a fourth class of professional nurses, Nurse Practitioners, are currently barred by law from participating in collective bargaining in Alberta. Changes need to be made to allow nurses to associate together for the purposes of collective bargaining. 

Read UNA's entire submission to the Essential Services Legislation Review