An Overview of PSE Labour Relations after Bill 7 AN ACT TO ENHANCE POST-SECONDARY ACADEMIC BARGAINING

Post-secondary Learning Act - Now “87 to 89 Repealed 2017 c4 s2.” 87 = Academic staff agreements 88 = Compulsory binding arbitration 89 = Execution of agreements Application of labour law 90 The Employment Standards Code does not apply [Labour Relations Code does…]

Collective Bargaining Process under old Post-secondary Learning Act was “contractual”—process as agreed to by parties set out in each Academic Staff Agreement. Each post-secondary institution had different processes. Collective Bargaining Process under Labour Relations Code is “statutory”—process as set out in Code. Same process applies to every post-secondary institution. Parties cannot contract out of public policy statutes. Process in a “collective agreement” conflicting with Labour Relations Code is void as against public policy

Labour Relations Code, Definitions & Application 1 In this Act, (a) "bargain collectively" or "collective bargaining" means to negotiate or negotiation with a view to the conclusion of a collective agreement or the revision or renewal of a collective agreement; (b) “bargaining agent” means a trade union that acts on behalf of employees in collective bargaining or as a party to a collective agreement with an employer or an employers’ organization, whether or not the bargaining agent is a certified bargaining agent; (f) “collective agreement” means an agreement in writing between an employer or an employers’ organization and a bargaining agent containing terms or conditions of employment, and may include one or more documents containing one or more agreements;

Labour Relations Code, Definitions & Application 1 In this Act, (x) “trade union” means an organization of employees that has a written constitution, rules or bylaws and has as one of its objects the regulation of relations between employers and employees; NOTE: PSLA, s 86(2) “(2) The academic staff association shall, with the approval of the academic staff members, make bylaws governing its affairs, and those bylaws shall contain provisions governing at least … [List does not mandate one object being the regulation of relations between employers and employees…]

Labour Relations Code, Definitions & Application 58.3(1)(c) the academic staff association of a public post-secondary institution is, subject to the future effects of the application of Divisions 4 to 9 under section 58.2(2), the bargaining agent for the academic staff of the public post-secondary institution and has exclusive authority to bargain collectively on behalf of the academic staff and to bind them by a collective agreement. 58.3(2) The academic staff association of a public post-secondary institution is deemed to be a trade union for the purposes of acting as bargaining agent for the public post-secondary institution’s academic staff members.

Labour Relations Code, Trade Unions Division 3 - Trade Unions 24 Filing of constitution, etc., of trade union 25 Capacity of trade union 26 Suspension or expulsion from trade union 27 Deduction of union dues 28 Fees for temporary card 29 Employees to be union members

Labour Relations Code, Trade Unions Filing of constitution, etc., of trade union 24(1) In accordance with the rules and procedures established by the Board, a trade union shall file with the Board (a) a copy of its constitution, bylaws or other constitutional documents, and (b) the names and addresses of its president, secretary, officers and other organizers and the names of its officers who are authorized to sign collective agreements. (2) The trade union shall send to the Board any changes to the information supplied under subsection (1) as soon as possible after the change is made and in any event when required to do so by the Board.

Labour Relations Code, Definitions & Application 1 In this Act, (l) “employee” means a person employed to do work who is in receipt of or entitled to wages, but does not include (i) a person who in the opinion of the Board performs managerial functions or is employed in a confidential capacity in matters relating to labour relations, (ii) a person who is a member of the medical, dental, architectural, engineering or legal profession qualified to practice under the laws of Alberta and is employed in the person’s professional capacity, or (iii) a nurse practitioner who is employed in his or her professional capacity as a nurse practitioner in accordance with the Public Health Act and the regulations under that Act;

Labour Relations Code, Definitions & Application 58.1(4) For the purposes of this Division [Division 9.1 Post-secondary Academic Bargaining], an employee referred to in sections 58.3(1)(b) [academic staff members of a public post-secondary institution]… is an employee notwithstanding that the person (a) performs managerial functions, (b) is a member of the medical, dental, architectural, engineering or legal profession qualified to practise under the laws of Alberta and is employed in the person’s professional capacity, or (c) is a nurse practitioner employed in the professional capacity as a nurse practitioner in accordance with the Public Health Act and the regulations under that Act.

Labour Relations Code, Definitions & Application Application [Part 2 Applies] 58.2(1) Divisions 4 to 9 and section 156 do not apply (a) with respect to the board of a public post-secondary institution while it is acting as the employer of the academic staff members of the public post-secondary institution or with respect to those academic staff members… [s 156 = Health, welfare and pension trusts—trustee liability] BUT…

Labour Relations Code, Definitions & Application (2) Notwithstanding subsection (1), Divisions 4 to 9 apply effective July 1, 2022 unless a later date is determined by the Lieutenant Governor in Council after the Minister has consulted with affected parties. Division 4: Employers’ Organizations Division 5: Certification Division 6: Voluntary Recognition Division 7: Modification of Bargaining Rights Division 8: Revocation of Bargaining Rights Division 9: General Provisions on Certification and Voluntary Recognition

Labour Relations Code, Post-secondary Academic Bargaining Transitional provisions 58.7(1) …collective bargaining that commenced under an agreement entered into under section 87 or 96 of the Post-secondary Learning Act continues subject to the Labour Relations Code. 58.7(2) If before [6 April 2017] a dispute that arises during the negotiation of an agreement is referred to binding arbitration pursuant to an agreement under section 87 or 96 of the Post-secondary Learning Act or referred to binding arbitration under section 88 of that Act, the arbitration continues as the dispute resolution process for that dispute unless the parties agree to terminate the arbitration.

Labour Relations Code, Post-secondary Academic Bargaining 58.7(3) If, on or after [6 April 2017] but before [4 May 2017], a dispute that arises during the negotiation of an agreement is referred to binding arbitration pursuant to an agreement under section 87 or 96 of the Post- secondary Learning Act or referred to binding arbitration under section 88 of that Act, the arbitration is terminated and any award made is void. 58.7(4) Effective on [6 April 2017] a provision in an agreement under section 87 or 96 of the Post-secondary Learning Act that requires disputes that arise during the negotiation of a future agreement to be resolved by binding arbitration is unenforceable. 58.7(6) For greater certainty, nothing in this section prevents the parties from referring matters in dispute to voluntary arbitration under section 93.

Labour Relations Code – Collective Bargaining Process Notice to commence collective bargaining 59(2) …when a collective agreement is in effect, either party to the collective agreement may, not less than 60 days and not more than 120 days preceding the expiry of the term of the collective agreement or within any longer period that may be provided for in the collective agreement, by notice in writing, require the other party to the collective agreement to commence collective bargaining. 58.1(3) An agreement entered into under section 87 or 96 of the Post-secondary Learning Act before the Bill to enact An Act to Enhance Post-secondary Academic Bargaining receives Royal Assent is a collective agreement for the purposes of this Act.

Labour Relations Code – Collective Bargaining Process 58.7(5) An agreement under section 87 or 96 of the Post-secondary Learning Act that operates for an unspecified term is deemed, despite section 129 of this Act, to provide for its operation for a term of 3 years beginning on [4 May 2017] or for a shorter period agreed on by the parties. 129 If a collective agreement is for an unspecified term, the agreement is deemed to provide for its operation for a term of one year from the date that it commenced to operate.

Labour Relations Code – Collective Bargaining Process Commencement of bargaining 60 (1) When a notice to commence collective bargaining has been served under this Division, the bargaining agent and the employer or employers' organization, not more than 30 days after notice is served, shall (a) meet and commence, or cause authorized representatives to meet and commence, to bargain collectively in good faith, and (b) make every reasonable effort to enter into a collective agreement.

Labour Relations Code – Collective Bargaining Process (2) The bargaining agent and the employer or employers' organization shall exchange bargaining proposals within 15 days after the first time they meet for the purpose of collective bargaining or within any longer time agreed on by the parties. (3) No employer, employers' organization or bargaining agent and no authorized representative acting on behalf of any of them, after having served or having been served with a notice to commence collective bargaining pursuant to this Division, shall refuse or fail to comply with subsections (1) and (2). [Complaint to ALRB ==Breach of Duty to Bargain in Good Faith]

Labour Relations Code – Collective Bargaining Process No strike unless permitted 71 No employees, no bargaining agent and no person acting on their behalf shall strike or cause a strike or threaten to strike or to cause a strike unless that strike is permitted by this Act.

Labour Relations Code – Collective Bargaining Process Conditions under which strike permitted 73 An employee, bargaining agent or person acting on behalf of a bargaining agent is entitled to strike or cause a strike if (a) no collective agreement is in force, other than as a result of section 130 [Bridge], (a.1) in the case of an employee and bargaining agent referred to in section 95.2(a) or (b), (i) an essential services agreement has been accepted for filing in accordance with section 95.44 or an exemption has been granted under section 95.21, and (ii) a declaration has not been made under section 95.44(7),

Labour Relations Code – Collective Bargaining Process (b) a strike vote was held under this Division (i) that remains current, (ii) for which the results have been filed with the Board, and (iii) that resulted in a majority in favour of a strike, (c) strike notice is given in accordance with this Division, (d) the strike commences on the day and at the time and location specified in the strike notice or, if an amendment to the strike notice is agreed to and is permitted under this Division, on the day and at the time and location specified in the amended strike notice…

Labour Relations Code – “Academic Staff” Designations Application respecting academic staff designations 58.6(1) A person or bargaining agent affected by a designation or change in designation made under section 5(2), 42(2) or 60(2) of the Post-secondary Learning Act, or a failure to designate, may apply to the Labour Relations Board to decide whether a category of employees or individual employees are academic staff members. (2) On considering an application under subsection (1), the Labour Relations Board may decide whether a category of employees or individual employees are academic staff members, and in deciding may take into account any of the following:

Labour Relations Code – “Academic Staff” Designations (a) the history of, and the employer’s policies concerning, designations within the public post-secondary institution;  (b) the results of any consultation referred to in section 5(2), 42(2) or 60(2) of the Post-secondary Learning Act;  (c) 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;  (d) any arrangements made for any transition in status of categories of employees or individual employees;  (e) the submissions and interests of any other bargaining agent representing employees of the public post-secondary institution affected by the designation;  (f) any other factor the Board considers relevant.

Labour Relations Code – Unfair Labour Practices Division 23 Prohibited Practices 147 Alteration of terms of employment [“Business as Usual” / “Statutory Freeze”] 148 Prohibited practices by employer, etc. 149 Prohibited practices by employer, etc. 150 Rights of employer 151,152 Prohibited practices by trade union, etc. 153 [Duty of] Fair representation 154 Dispute-related misconduct 155 Insurance and pension rights

Labour Relations Code – Duty of Fair Representation 153(1) No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented* by the trade union with respect to the employee’s or former employee’s rights under the collective agreement. (*Association can’t act arbitrary, discriminatory, in bad faith or with serious negligence) NOTE: Under old PSLA = civil action against Association claiming breach of the common law duty of fair representation. Since 6 April 2016, exclusive jurisdiction over complaints alleging Association breaching ALRC s 153 = complaint to the ALRB (not court) “with respect to … rights under the collective agreement.” NOTE: “Duty of Fair Representation” should not be incorporated term of constating documents of organization (constitution/bylaws) or in collective agreement (principle is not a term or condition of employment)

Labour Relations Code – Offences and Penalties Division 25 Offences and Penalties 158 Specific offences 159 Penalties re prohibited lockouts 160 Penalties re prohibited strikes 161 General offence and penalty 162 Prosecutions