Collective Bargaining
The objective of collective bargaining is a collective agreement between the union and the employer. This agreement governs wages and benefits for the employees it covers, for a fixed period or "term." This fixed-term collective agreement provides a period of labour peace. Strikes and lockouts are allowed only when a collective agreement has expired, and then only after the collective bargaining process has taken place.
There is a cycle to collective bargaining. Once bargaining has begun with a notice to bargain, several things must happen before a strike or lockout can take place. The parties must meet, exchange proposals, and discuss their mutual concerns in detail. If they cannot reach a settlement on their own, they must try a period of bargaining with the help of a mediator. Once a mediator has issued a report, or decided not to issue a report, they must wait a 14-day "cooling-off period" before taking strike or lockout action.
Before strike or lockout action begins, there must be a Board-supervised strike or lockout vote. A 72-hour notice is required before a legal strike or lockout can begin. This allows each side to make its final preparations, but more importantly, it allows last-minute negotiations to take place that could resolve the dispute without industrial conflict.
The Code creates a special system to resolve disputes of hospital and firefighting employees. Strikes and lockouts are prohibited and compulsory arbitration is used to settle disputes if collective bargaining fails. There are similar rules for police, and special powers in the event of a public emergency.
The steps in the collective bargaining cycle are outlined in the pages that follow.
Collective bargaining usually starts when one party serves the other party with written notice to bargain. If the union is newly certified and no agreement is in effect, the notice to bargain may be served at any time. If a collective agreement is in force, the notice to bargain must be served between 60 and 120 days before the existing collective agreement expires, unless the collective agreement specifies a longer period (Section 59(2)).
The notice must include a list of the names and addresses of the bargaining committee of the side issuing the notice. The other party must respond with a list of the names and addresses of its bargaining committee. Each committee must include at least one person from the trade union locals or the employers being represented (Section 61).
The union and the employer must meet and begin to bargain in good faith within 30 days after the notice is given. The objective of the bargaining is to amend an existing collective agreement or to reach a new one. They must exchange bargaining proposals within 15 days of this first meeting unless they agree on a longer period. Either party can require the other to tell them what ratification procedures are necessary for a collective agreement (Section 61(6) and (7)).
When bargaining has begun, the Code automatically extends the terms of a contract that would otherwise expire (referred to as bridging), so all of its terms and conditions apply while bargaining continues. This bridging continues until a legal strike or lockout takes place, until the bargaining rights are terminated or until a new collective agreement is entered into.
While the Code extends a collective agreement during collective bargaining, that agreement terminates as soon as a lawful strike or lockout takes place. Except for rights and benefits that are partly protected by the Code (pensions and insurance benefits, for example, have a limited protection), the terms and conditions of the collective agreement no longer apply once a strike or lockout begins (Section 130).
What can be done if one side refuses to meet or negotiate in good faith?
The Code requires the parties to meet with each other and to bargain in good faith. They must make every reasonable effort to enter into a collective agreement (Section 60). If one party feels the other is failing to meet or failing to bargain in good faith, that party may file a complaint with the Board. If the complaint cannot be settled, the Board may hold a hearing, make a finding and, if necessary, issue directives or impose conditions to ensure that good faith bargaining resumes (Section 17(1)).
The Board's powers concerning good faith bargaining only ensure the bargaining process is carried out properly. It is not the Board's job to settle the terms of the agreement itself; that is for the parties through collective bargaining. The Board's role is limited to ensuring the parties do this diligently and fairly.
Employers often wish to join together to bargain collectively with a trade union. Sometimes, employers will voluntarily authorize a consultant or an employers' organization to bargain with a trade union as the employer's agent. The Code allows this procedure, in which the agent simply bargains for a collective agreement on behalf of several employers at once. An employer may withdraw from this informal process at any time to bargain on its own behalf.
A more formal procedure for group employer bargaining is found in Section 62 of the Code. An employers' organization may be authorized in writing by a number of employers to bargain on a group basis on their behalf. Once employers commit themselves to group bargaining in this formal fashion, the employers' organization continues to represent them until the dispute is settled or a strike or lockout occurs. If a strike or lockout happens, they are free to withdraw from the group if they wish. The employers' organization must give the union a list of all employers in a Section 62 bargaining group within 10 days of the service of any notice to begin collective bargaining. No additional employers can be added to the list later without the union's consent.
At any time during collective bargaining the parties may ask for the help of a mediator (Section 64, 65). If the parties in collective bargaining cannot come to an agreement, they may make an application for a mediator to help settle the dispute. In the public sector, the Labour Relations Board will appoint a mediator at the request of either or both parties to the dispute, or at the direction of the Minister of Employment and Immigration. In the private sector, the Director of Mediation Services will make the appointment. The mediator's function is to hear both sides of a dispute and to encourage and assist the parties to reach a settlement (Section 65).
An initial 14 days of formal mediation is provided for in the Code and no strike or lockout is permitted until a further 14-day cooling-off period has passed. Once formal mediation begins, the mediator will meet with the parties and try to encourage a settlement. The mediator has the choice of telling the parties that a report containing recommendations will not be issued, or of issuing a report recommending terms of settlement that the parties may then accept or reject.
The recommendation binds the parties if both accept it. If either the union or the employer accepts the mediator's recommendations, it can apply to have the Labour Relations Board conduct a vote of the side that rejected the offer. Individual employees, or in the case of an employers' organization, the individual employers, vote by secret ballot.
A recommendation accepted during this vote forms the new collective agreement. If the vote fails, the union and the employer must then decide on their next step. They can continue negotiations, they can consider strike or lockout action, or, if they both agree, they can submit the dispute to voluntary interest arbitration. There must be a 14-day cooling-off period after a vote on a mediator's report before a strike or lockout vote can be conducted (Section 65).
Following the mediation process and cooling-off period, if no new collective agreement has been reached, the parties have the option of taking strike or lockout action to apply pressure on the opposing party to reach a settlement. In order to call a strike, a trade union must apply to the Labour Relations Board to have the Board supervise a strike vote. Similarly, an employer or employers' organization wishing to lock out its employees must apply to the Board for a supervised lockout vote or for an employer poll, in the case of a single employer.
The object of a strike vote is to determine, in a democratic manner, whether a majority of the employees is prepared to strike. The object of a lockout vote is to determine whether an employer, or a majority of the employers represented by the employers' organization, is prepared to lock out its employees. The Board has voting rules and an information bulletin setting out its role in the supervision of strike and lockout votes.
The Labour Relations Code provides that a strike or lockout vote remains valid only for 120 days (Section 77). This ensures that strikes and lockouts do not take place too long after the employers or employees affected have had a chance to express their views.
When an application to supervise a strike or lockout vote is received, the Board appoints a supervising officer who may meet with the parties to set up the voting procedures, may attend during the vote and be present at the counting of the ballots. The Board's role is supervisory. The vote is actually conducted by the party requesting the vote.
The final step before a strike or lockout can take place is giving notice of the time, date and initial location of the intended action. To be effective, the notice must be properly served on the other party at least 72 hours in advance of the proposed strike or lockout action (Section 78). The notice must also be served on the mediator in the dispute.
The purpose of the notice is to give the other side advance warning of the strike or lockout action. It also gives an opportunity to try to find a settlement before strike or lockout action begins.
What happens if, after notice is given, a strike or lockout does not occur?
If a strike or lockout does not begin on the date set out on the notice, a new 72-hour notice must be given to the other party involved. A copy must also be given to the mediator. The new notice must state the new time and place of the proposed strike or lockout (Section 80). However, if both sides agree in writing to do so, they may amend the time, date or place set out in a notice that has been served, eliminating the need for a new notice. This often happens while last-minute bargaining is attempted.
The Code sets out the times when a lawful strike and lockout can take place. All other strikes and lockouts are prohibited. Many of the provisions that protect employees and employers during a lawful strike or lockout do not apply if the strike or lockout is prohibited. The Code gives the Board powers to order that prohibited strikes and lockouts cease and to exercise those powers very quickly (Sections 86-88). The Code also allows the courts to impose heavy penalties for participation in prohibited strikes and lockouts.
When can a legal strike occur?
A strike can legally take place only if these requirements are met:
- No collective agreement, or only a bridged agreement, is in force
- A majority of employees has voted in favour of a strike in a vote supervised by the Labour Relations Board
- A declaration of the result of the strike vote has been filed with the Board (Section 73(6))
- No more than 120 days have passed since the strike vote was taken
- The trade union has served strike notice personally on the employer or the employers' organization, giving at least 72 hours' notice of the date and time the strike will begin and has also notified the mediator (Section 78)
When can a legal lockout occur?
A legal lockout can take place only if these requirements are met:
- No collective agreement, or only a bridged agreement, is in force
- When an employers' organization is representing a number of employers, a majority of the employers has voted in favour of a lockout vote in a vote supervised by the Labour Relations Board
- When the dispute involves a single employer, a poll of the employer is in favour of a lockout
- The employer has filed the results of any lockout vote with the Board
- No more than 120 days have passed since the lockout vote or poll was taken
- The union or its representative has been personally served with 72 hours' written notice of the date and time the lockout will begin
- The mediator has been notified (Sections 74, 78)
Is a striking or locked-out employee still considered an employee?
Yes. Although an employee on strike or locked out is not working and not entitled to pay, he or she is still considered an employee (Section 1(l)) and cannot be terminated simply because of being on strike or lockout (Section 89).
The Labour Relations Code has protection for employees on lawful strike or locked out (Section 90). When the strike or lockout ends they are entitled to ask to resume their employment. They are entitled to be reinstated in preference to any employee hired as a replacement during the dispute. An employee must ask for this reinstatement as soon as the strike or lockout is over. The Code provides that a dispute ends with a settlement, or the termination of bargaining rights, or as soon as two years have passed since the strike or lockout began.
This reinstatement provision does not mean that all employees will be automatically recalled as soon as a strike or lockout is over. For example, markets may be lost, causing production to be reduced.
There is particular protection in the Code for pension rights and benefits (Section 155). There is also protection for medical, dental, disability, life and other insurance schemes. However, it is up to the trade union representing employees to take steps to ensure payment of the full premiums of the insurance schemes it seeks to protect.
When is a strike or lockout prohibited?
In general, a strike or lockout is prohibited if it occurs before the steps set out above have been taken, or if it occurs when a collective agreement is in force.
A strike or lockout is also prohibited if it involves hospital employees, firefighters, police, or public servants. These employees are covered by special legislation which prohibits strikes or lockouts. If the Cabinet declares a particular dispute to be a public emergency, it becomes unlawful to continue or begin any strike or lockout covered by the order.
The Labour Relations Code also gives the Board the power to restrict activities likely to cause or continue an unlawful strike (Section 86). Threatening an unlawful strike or doing something likely to lead others to engage in an unlawful strike can lead to a Board order directed to the trade union, its officers and members as well as the employees or persons involved. Similar provisions exist to restrict activities likely to cause an unlawful lockout (Section 87).
What are the consequences of an unlawful strike or lockout?
Any party alleging an unlawful strike or lockout can ask the Board to hold a hearing on short notice. If the strike or lockout is unlawful, the Board will order that it be stopped. It may also make other remedial orders (Section 17). Such an order, once given, applies to the strike or lockout referred to in the Board's order and any future strike or lockout that occurs for the same reason.
A Board order may be filed by the Board with the Clerk of the Court and is then enforceable as a judgement of the court. It is contempt of court to knowingly violate a court order. With the consent of the Minister of Employment and Immigration, a party can also be prosecuted directly for violating an order of the Board (Section 162).
The Labour Relations Code allows picketing to occur during a lawful strike or lockout. The picketing is restricted to the employees' place of employment. Alberta does not allow "secondary picketing" which is picketing somewhere other than the place of employment (Sections 84(4), 85). This restriction does not apply to the picketing of an "ally" or "alter ego" employer in a labour dispute.
Picketing must be peaceful and carried out without trespassing or other unlawful acts. Violent or unlawful acts can involve legal consequences and may affect the employees' continued employment.
The Labour Relations Board is primarily responsible for regulating picketing activities during a strike or lockout. Picketing that has become unlawful may be prohibited by a Labour Relations Board order. When an application is made to the Board to regulate lawful picketing, the Board considers and balances the right to peaceful free expression of opinion, the directness of the interests of persons participating, any likelihood of violence and any undesirable escalation of the conflict or dispute (Section 84(3)).
The Labour Relations Code sets up a number of ways to resolve disputes without going to strike or lockout. These include proposal votes, voluntary arbitration and setting up a disputes inquiry board. At any time after the first exchange of bargaining proposals (but only once during the course of the dispute), the employer may have the Board take a proposal to the employees affected by the dispute for a secret ballot vote to determine if the proposal is acceptable. If the employees vote to accept the offer, it becomes the basis of a new collective agreement (Section 68).
Similarly, a trade union may ask once during the course of the dispute to have the employer or members of an employers' organization polled by the Board, and if the union's offer is accepted, it becomes the basis of a new collective agreement.
If both parties agree, a dispute can be submitted to voluntary binding arbitration. Agreement in writing is required. One side cannot submit a dispute to arbitration without the consent of the other side. The Minister of Employment and Immigration can be asked to make the necessary appointments if the parties cannot agree on who should hear the dispute. There can be a one- or three-person arbitration board. The arbitration board will hold a hearing about the dispute, listen to submissions, and then decide on terms and conditions for a collective agreement that will bind both parties (Sections 93-95).
The Minister of Employment and Immigration has the option to appoint one or more persons as a disputes inquiry board to attempt to settle a dispute before or after a strike or lockout begins.
Once parties achieve a collective agreement it becomes binding on all the parties affected, whether they are employers, trade unions or employees. Usually the agreement will result from direct negotiations. However, an agreement arrived at through arbitration or through an accepted proposal, mediation or disputes inquiry board vote is equally binding.
Every collective agreement should have a fixed expiry date. This is important because it influences when applications can be made for termination of bargaining rights or for certification of another union. It also determines when notice to bargain can be given. If an agreement is signed without a fixed term, the Code says the agreement is for one year (Section 129).
Collective agreements may have an automatic renewal clause. Parties will sometimes agree that if no notice to bargain is given in the period for giving notice, the contract will be automatically renewed, usually for a further year. Such clauses are not required by the Code. Such automatic renewal provisions are different from bridging clauses. A bridging clause only extends the terms of the collective agreement during the bargaining period until a strike or lockout occurs.
The Labour Relations Code has special rules to resolve disputes in certain essential services. These parties must submit unresolved bargaining disputes to a form of binding arbitration that replaces the option to strike or to lockout. These no-strike-or-lockout rules always apply to hospital employees and firefighters. A similar system applies to police under The Police Officers Collective Bargaining Act, and to public servants under the Public Service Employee Relations Act.
In addition, these rules apply when the Cabinet declares a dispute to be a public emergency. For this to be done, the dispute must be causing or have the potential to cause an emergency, including a threat to public health or to property (by stopping sewage or water treatment, for example). Once this power is used, a dispute that might otherwise involve a legal strike or lockout changes. Any work stoppage must end, and the issues in dispute be resolved by a form of arbitration called a public emergency tribunal (Sections 112, 113).
How are disputes settled when the employees are not allowed to strike?
When a mediator is appointed to a dispute involving employees prohibited from striking (Section 96(1)), the mediator will help the parties attempt to settle the items in dispute. If the parties do not settle within 14 days of the mediator's appointment, the mediator will forward a list of all items in dispute to the Minister of Alberta Employment and Immigration. The Minister may appoint a compulsory arbitration board or may order the parties to return to collective bargaining (Section 98).
A compulsory arbitration board decides the matters that will form a collective agreement which is binding on both the employer and the union. Police arbitrations and public emergency tribunals act in a similar way.
The Code requires that a compulsory arbitration board consider certain criteria to help it establish wages and benefits that are fair and reasonable to the employees and the employer and are in the best interests of the public (Section 101).
What happens if a strike or lockout takes place in the hospital or firefighting industry or following a public emergency declaration?
The Labour Relations Code establishes some additional remedies that can be applied in the event of an unlawful strike or lockout in these cases. The Board can impose financial penalties on the offending party when firefighters or hospital workers are involved or when the strike or lockout is creating a public emergency. In the case of a prohibited strike of this type, the Board may stop the union from receiving the dues and fees it normally receives from the employees. It does this by directing the employer to stop these deductions for a period of one to six months. In the case of an illegal lockout of this type, the Board may direct the employer to pay the union dues normally payable by the individual employees, also for a period of one to six months (Sections 114,115).
As a further option, the Code gives the Lieutenant-Governor in Council (the Cabinet) the power to revoke a trade union's certification or prohibit an employers' organization from continuing to represent employers. This power applies only to public emergencies, and hospital and firefighter disputes and only if the union or employers' organization has caused or participated in the prohibited strike or lockout.
