Alberta Politics
Alberta Union of Provincial Employees President Guy Smith speaks wither reporters about Bill 9 earlier this month at the Alberta Legislature (Photo: David J. Climenhaga).

Injunction suspending application of Bill 9 leaves Kenney Government with egg on its face

Posted on July 31, 2019, 1:51 am
7 mins

Oh, to have been a fly on the wall at United Conservative Party Headquarters last night!

I imagine there were heated words spoken about Mr. Justice Eric Macklin’s decision just before the close of business yesterday to grant the Alberta Union of Provincial Employees an interim injunction suspending application of Bill 9, the Public Sector Wage Arbitration Deferral Act, until the union’s challenge of the law’s constitutionality can run its course.

UCP Finance Minister Travis Toews (Photo: David J. Climenhaga).

This was not an outcome that could have been predicted with a high degree of certainty, and it leaves the government of Premier Jason Kenney with egg on its face.

AUPE was justified to hail its courtroom success as “a fundamental victory for all workers in Alberta.” Said AUPE President Guy Smith in a news release last night: “Justice Macklin also agreed with AUPE that the public has a real interest in ensuring that all parities, including the government, comply with their contractual obligations.”

It’s hard to imagine the UCP is the sort of organization that reacts to such developments with equanimity.

Still, for the time being, yesterday’s decision by a justice of the Alberta Court of Queen’s Bench leaves the Kenney Government in a difficult position, as well as an embarrassing one.

Federal Conservative Leader Andrew Scheer (Photo: Andre Forget, Andrew Scheer/Flickr).

As has been argued here before, the principal purpose of Bill 9, which allowed the government to break terms and conditions of legal contracts negotiated in good faith by delaying wage arbitrations until after the October federal election, was simply to prevent arbitrators giving public employees like nurses a raise. Potentially, up to 180,000 public-sector workers could have been impacted.

The urgency for a government that had already decided to attack public-sector salaries was that many Alberta public employees’ unions negotiated “wage reopener” agreements in their current contracts, which have now reached the point these wages-only negotiations were about to start or were already underway.

Typically, if parties to a wage-reopener can’t reach agreement in collective bargaining, compulsory binding arbitration is triggered. Both AUPE and United Nurses of Alberta, an intervenor in the case, had already reached that place in their negotiations when Bill 9 was passed and proclaimed into law in June.

Alberta Premier Jason Kenney (Photo: Alberta Premier Jason Kenney).

The UCP must have thought it was being devilishly clever when it derailed that process with Bill 9, arguing unconvincingly this was just a procedural delay while its recently appointed “blue-ribbon” panel got a handle on the province’s finances. Union members suspected there was no mystery about what the panel headed by former Saskatchewan finance minister Janice MacKinnon would recommend based on what she has done and written in the past.

Now that strategy doesn’t look so clever, especially in light of Mr. Justice Macklin’s commentary, which to this legal layperson’s reading doesn’t indicate a lot of confidence in either the government’s good intentions or its respect for fundamental rights.

“Members of the public expect that parties to an agreement will honour commitments made in agreements, and they reasonably expect that parties with whom they contract, regardless of who that may be, will honour the terms of the agreement made,” he said, noting this is true even when one of the parties is a government.

“Blue-Ribbon Panel” Chair Janice MacKinnon (Photo: C.D. Howe Institute).

“It is in the long-term public interest for the public to see that its government cannot unilaterally change its contractual obligations through legislation that may interfere with Charter rights,” he stated. This is a conclusion that suggests he thinks AUPE’s constitutional argument has merit.

That said, the ruling is not everything the union might have hoped for, including as it does “direction that any wage increases awarded through the interest arbitration shall be held in abeyance until this claim is finally determined.”

Still, in the short term, this doesn’t leave the government a lot of palatable options if it doesn’t want to upset federal Conservative Leader Andrew Scheer’s rickety applecart before Oct. 21, when the next federal election is to be held.

Like Doug Ford’s calamitous government in Ontario, UCP leaders don’t have much choice but to behave — which must go against their instincts.

They can appeal the ruling, as Finance Minister Travis Toews has already vowed to do. This might succeed, but it seems likely Mr. Justice Macklin, aware of this possibility, has crossed his t’s and dotted his i’s with care.

They could recall the Legislature and invoke the Constitution’s Notwithstanding Clause, but that would bring the wrath of voters outside the Prairies crashing down on Mr. Scheer’s head.

Or they can grind their teeth and plot their next move, after the federal election season has passed. In the mean time, it will be interesting to see how they try to prevent arbitrators from doing their jobs.

Advice to AUPE and other unions: This isn’t over. Keep your powder dry.

8 Comments to: Injunction suspending application of Bill 9 leaves Kenney Government with egg on its face

  1. Brian Gibbon

    July 31st, 2019

    THat’s not “egg” on their faces ….

    Reply
  2. Public Servant

    July 31st, 2019

    I wonder if Jason Kenney would have less contempt for workers if he had ever had to work at a minimum wage job. He has been living well off the taxpayer for his entire working life.

    Remember that Kenney introduced the Bad Faith Bargaining Bill 9 during Public Service appreciation week. It is simply not possible to show more contempt for public servants than that.

    Reply
  3. Albertan

    July 31st, 2019

    This is a ‘pure gold’ decision by Mr. Justice Eric Macklin. Egg on UCP faces? It couldn’t happen to a better bunch.

    Reply
  4. Scotty on Denman

    July 31st, 2019

    What’s more damning?

    I hope Canadians are waking up to the neo-right conundrum: if these usurpers of once-responsible conservative parties and sometime-governments were truthful about their real agenda to diminish our federation’s eleven sovereignties for the sake of stateless corporatism and private profiteering at the expense of our environment, hardly anybody would vote for them (hence the cagey platforms and stealthy mendacity). But surely it’s becoming more plain to more and more citizens now that Scheer’s federal neo-right party has been hurt by the agendas of the Alberta and Ontario conservative governments—to the extent that it’s crimping their style.

    So what’s more damning? Andrew Scheer’s “rickety applecart” of disingenuousness rolling toward this fall’s federal election, or the fact that JKKK and/or D’ohFo have to sit on their hands, swallow their bile and whistle past the dog cemetery else realizations of their respective, disrespecting agendas doom their federal equivalent’s chances of winning in October? It’s that bad.

    I’d say even a tie is at least damning for Scheer, almost certainly so for the D’ohFo, and who knows?—maybe one day, even for the Albertan pseudoCon.

    Reply
  5. Dave

    July 31st, 2019

    All those new conservative governments are not doing so well in the courts – first the carbon tax in Saskatchewan and Ontario, now wage arbitration deferral in Alberta. I suspect they don’t want to hear this, but rule of law is a real thing, not just something to use against pesky pipeline protesters. It applies to governments too. In this case, it affirms that you can not just ignore or dismiss all the things you do not like or are not convenient for you by passing a law.

    Yes, the new Alberta government probably needs some time to figure out how it is going to handle our financial situation. Although, it is not entirely a surprise – the deficit amount was known for a long time and the only surprise was it was actually quite a bit lower, so they didn’t inherit a bigger than expected mess. They actually got some much needed breathing room from the previous NDP government. In any event, it is no excuse to try delay dealing with wages for employees. Any government has to deal with a number of issues at the same time. If they can not walk and chew gum at the same time as the saying goes, then they are probably not up to really governing.

    I suppose the UCP may refuse to gracefully accept defeat on this issue, much like it seems determined to plow on challenging the Federal carbon tax even despite several defeats already in other provinces. However, the risk is at some point this stubbornness may start to look like foolishness and all the legal costs associated with continuing to fight on these issues may also start to look wasteful to voters.

    Reply
    • Bob Raynard

      August 1st, 2019

      Dave, I think you forgot the UCP mantra “We will spare no expense to cut back”.

      Reply
  6. Jerrymacgp

    August 1st, 2019

    This would not be the first time that an anti-worker Alberta government has rested its fingers on the scales when public-sector wages, benefits & working conditions are on the line. I seem to recall a period back in the Getty-Klein era, when the PC government of the day brought in legislation requiring compulsory interest arbitration panels—which was then the only legal option available to a public-sector union facing an impasse at the bargaining table—to take into account “the fiscal situation of the government” (or words to that effect). Essentially, that legislation made public-sector workers individually responsible for the poor financial management of the government.

    Should we expect similar legislation this fall? I wouldn’t bet against it. It seems every bad idea from the past keeps getting resurrected by the Kenney Government.

    Reply

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