In response to UNA challenge, Alberta court rules Labour Code's strike bans unconstitutional

For Immediate Release

A judge of the Alberta Court of Queen’s Bench has made a landmark ruling in a case brought by United Nurses of Alberta that sections of the Alberta Labour Relations Code banning strikes by all employees of Alberta Health Services and other “approved hospitals” are unconstitutional.

The decision Tuesday by Mr. Justice Dennis Thomas is the culmination of a fight by UNA against the blanket ban on strikes in the Labour Code that dates back to the early-1980s, when the restrictions were included in the legislation affecting most unionized workers in Alberta.

The Government of Alberta consented to the ruling.

The blanket ban on strikes by all hospital workers was included in the Labour Code in 1983 after strikes by Alberta nurses in 1977, 1980 and 1982.

“UNA opposed the ban on strikes in 1983 and has opposed it since then,” said David Harrigan, the union’s director of labour relations. “We have always argued that nurses have the right to strike with reasonable measures to guarantee essential services as part of the collective bargaining process.”

Since then, UNA members have formed their own essential-services committees to ensure essential services were provided in the event of a technically illegal strike, he explained. “This decision shows that our people were on the right track the entire time.”

In the judgment handed down Tuesday, Justice Thomas ruled the blanket prohibitions against strikes and lockouts in Section 96 (b) and (c) of the Alberta Labour Relations Code violate the Canadian Charter of Rights and Freedoms and are not saved by the Charter’s provision allowing reasonable limits as can be demonstrably justified in a free and democratic society.

As a result, Justice Thomas ruled, the two sections “are therefore without force and effect.”

However, the superior court judge suspended his declaration for a period of one year to allow the government to draft changes to the legislation that are in accord with the provisions of the Charter.

The decision – which also took into account later actions brought by two other unions, the Health Sciences Association of Alberta and the Alberta Union of Provincial Employees – came in response to an action filed by UNA in January 2014 against Bill 45, the Public Sector Services Continuation Act, that also argued the sections of the Code were in violation of the Charter.

UNA argued that both the Code and Bill 45 contained provisions violating fundamental freedoms, including freedom of association and expression, guaranteed by the Charter.

In his ruling on the Code provisions, Justice Thomas took note of the fact that Bill 45, which was passed by the Alberta Legislature in December 2013, was repealed by the Legislature with the agreement of the government of Premier Jim Prentice on March 25, coming into effect the day before his ruling, March 30.

The judge also cited the Supreme Court of Canada’s Jan. 30 decision in Saskatchewan Federation of Labour v. Saskatchewan, which saw the country’s top court strike down as unconstitutional a Saskatchewan law preventing public-sector employees in that province from striking.

While the Legislature passed Bill 45, the provincial government never proclaimed that bill into law. UNA, however, made the decision to proceed against the bill immediately anyway on the grounds the mere existence of the legislation, which could be proclaimed very quickly, would inevitably have an impact on the rights of unionized working people in Alberta.

UNA believes that bringing the case at that time was helpful in winning this significant decision about the longstanding problems in the Code.

UNA is pleased that the courts have protected the fundamental right of working people in Alberta and Canada to bargain collectively.