Rapport intérimaire - Rapport No. 333, Mars 2004

1. 240. The complaint is contained in communications dated 9 June and 2 July 2003 from the Alberta Union of Provincial Employees (AUPE).
2. 241. The Government of Canada transmitted the replies of the Government of Alberta in a communication dated 29 October 2003.
3. 242. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 243. In its communication of 9 June 2003, the AUPE explains that it is Alberta’s largest union, representing some 53,000 members in several sectors of employment, including health care, educational facilities, the provincial government, municipalities, boards and agencies.
2. 244. The AUPE alleges that the Government of Alberta violated Conventions on freedom of association and related instruments when it introduced the Labour Relations (Regional Health Authorities Restructuring) Amendment Act (Bill No. 27), which came into force on 1 April 2003 (hereafter “the Act”).
3. 245. The complainant organization submits that the new legislation significantly and dramatically alters bargaining rights for health-care workers in the Province by, among other things, terminating the right to strike for members, removing freely negotiated severance provisions from collective agreements, restructuring the health-care sector thereby effectively deleting collective agreements and forcing members into collective agreements and unions that are the product of “winner takes all” vote scenarios. Additionally, those unions that are not successful in “run-off” votes will no longer be able to organize the unorganized in the remaining four functional bargaining units. In short, the freedom to associate, to engage in legal strikes and to organize has been taken away from workers in Alberta’s health-care sector with the enactment of Bill No. 27. The Government’s interference with the worker’s right to choose a union and with the continued functioning of those unions and the collective agreements they have negotiated is a clear violation of Convention No. 87.
4. 246. Even though Bill No. 27 would rewrite collective agreements, take away the right to strike for non-essential health-care workers, dissolve collective agreements and force unions into “run-off” votes, there was no consultation with health-care unions, including AUPE, prior to the Alberta Government introducing Bill No. 27 on 11 March 2003. The usual course of legislation in Alberta, and indeed across Canada, is for stakeholders who are affected by proposed legislation to appear before committees to voice concerns or endorse the legislation. With Bill No. 27, there was no ability to do this, as the Alberta legislature passed the legislation in less than three weeks with the changes taking effect on 1 April 2003.
5. 247. According to the AUPE, the Act and associated regulations:
   • – terminate the right to strike. The majority of health-care workers (90 per cent) did not have the right to strike prior to the enactment of Bill No. 27. With the enactment of Bill No. 27, the legal right to strike for the remaining 10 per cent (approximately 7,000) of workers in health care has been abolished. The legislation has simply completed the Alberta Government’s mission to make strikes illegal for all health?care workers;
   • – remove the right for health-care workers to continue with their union of choice by forcing members in four functional bargaining units (there were five functional bargaining units prior to Bill No. 27) to participate in “run-off” votes. The Alberta Labour Relations Board will determine which collective agreement will apply to members thereby effectively negating all other existing collective agreements;
   • – nullify severance provisions in existing collective agreements. This not only eliminates the opportunity to bargain collectively for severance in future rounds of bargaining, but it also overrides basic contractual obligations that were fairly determined between both parties; and
   • – take away the right and ability for nurse practitioners to be unionized. Their duties have been expanded and they are now on their own to negotiate individual employment contracts.
6. 248. When the Government introduced Bill No. 27, it stated that it was doing so to “streamline bargaining” and to introduce “flexibility to implement reforms”. Any fair reading of Bill No. 27 indicates that the sole reason to make these draconian changes to labour relations in Alberta’s health-care sector is to tear up collective agreements, remove the right to strike and take away the right to choose a union without state interference. Under the guise of simple “housekeeping”, the Alberta Government has clearly demonstrated its contempt for international labour Conventions.
7. 249. In its communication of 2 July 2003, the complainant states that one of the more reprehensible effects of the Act is the removal of freedom of choice for workers by mandating run-off votes between unions in a “winner takes all” scenario. The resources, both human and financial, that must be expended by Alberta’s health-care unions to prepare for these forced votes, is astronomical. Time and effort that should properly be spent on safeguarding and protecting workers’ rights in existing freely negotiated collective agreements must instead be diverted to election campaigns that pit union against union and serve no useful labour relations purpose. Intentional or not, the purpose that it does serve is to create labour relations turmoil and attempts to severely weaken the ability of Alberta’s health-care unions to advocate on behalf of their members. With the stroke of a pen, the Alberta Government has essentially stated that it has the unilateral right to change the representation rights and future collective agreements of Alberta’s unionized health-care workers with no consultation with unions and in flagrant disregard for ILO Conventions.
8. 250. The AUPE adds that one of its specific allegations is that the Act would nullify severance provisions in existing collective agreements that were freely bargained between the union and a health-care employer. In support of its position, the AUPE attaches copies of correspondence with the Alberta Mental Health Board in which this employer confirms its position that it does not have to provide severance pay to AUPE members in accordance with an agreement between the parties, by relying on the provisions of Bill No. 27 and its attendant regulations.
9. 251. As a result of the enactment of Bill No. 27 on 1 April 2003, the Labour Relations Board (LRB), the administrative tribunal charged with the responsibility of ensuring compliance with Alberta’s labour legislation for the unionized work environment, issued revised information bulletins for the health-care sector. The revisions were necessary as a result of Bill No. 27 and provide an overview of how the regressive and draconian changes will be implemented. These include the process for forced run-off votes resulting in the elimination of unions freely chosen by workers and their respective collective agreements.
10. 252. The complainant organization requests that: the Act be declared in violation with Conventions on freedom of association and repealed; adversely affected employees be entitled to financial compensation; appropriate and meaningful consultations be held with affected trade unions; the Government refrain in future from arbitrarily enforcing legislation as a means of resolving disputes; and an ILO study and information mission be sent to Alberta to examine the complaint.

B. The Government’s reply

1. 253. In its communication of 29 October 2003, the Government states in summary that the purpose of the Act was to simplify the administration of labour relations in the public health-care sector. The changes carried out in the Act will ensure the effective management and provision of public health care to Albertans – the Government of Alberta’s number one public policy priority – while also protecting the right of health-care workers to organize and enjoy the benefits of a collective agreement. It explains by way of background that, as the public health-care governance structure (particularly following the creation of the regional health authority system in 1994) has become more centralized and integrated, pressure has increased for the labour relations system to conform to this new environment. Public health-care services in Alberta have been faced with increasing pressures and challenges over the past two decades. As with most Canadian jurisdictions, Alberta in the 1980s and 1990s struggled with the dilemma of supporting an increasingly sophisticated and complex health-care system in a period of severe fiscal restraint. The Alberta Government responded to this challenge in 1994 with the passage of the Regional Health Authorities Act, which greatly simplified public health-care governance by dividing the Province of Alberta into 17 geographically delineated regional health authorities (RHAs).
2. 254. Prior to 1994, responsibility for health-care delivery was divided among more than 200 hospital boards, public health units and various other public health bodies. In an environment characterized by a large number of employers typically operating one or just a few facilities, labour relations also tended to be decentralized, with a large number of bargaining relationships and collective agreements. Following regionalization, labour relations within the regional health authorities were characterized by considerable uncertainty as all parties attempted to determine how the new governance structure would work and, as the Labour Relations Board (LRB) describes it, “how that structure would affect bargaining units, collective agreements and trade union and employee rights”. No new legislation was introduced at the time, and labour relations disputes concerning the new governance structure were typically resolved before the LRB.
3. 255. For a number of reasons, no clear consistent model of labour relations, particularly with respect to bargaining unit structure, emerged in the post-regionalization period. While the LRB adjudicated on outstanding issues between the parties and adapted their policies and procedures to the new governance structure, there was a sense in the community (clearly acknowledged by the LRB) that the labour relations system as it applied to the regional health authorities warranted review. To that end, and in the context of the continuing evolution of public health-care delivery in the post-regionalization period, the LRB initiated a dialogue with health-care stakeholders. The question of the appropriateness of current LRB policy with respect to bargaining units was examined, and two discussion papers were issued in 1996. In 2002, the LRB issued another, more comprehensive, discussion paper and consulted with health-care stakeholders throughout the Province on the question of reform.
4. 256. In 2003, the Government of Alberta determined that a further realignment of the regional health authority system was required. In April 2003, the 17 regional health authorities were further restructured into nine larger regional health authorities. At this time, the operational management responsibilities of the Alberta Mental Health Board (AMHB) were folded into the RHAs, while the Alberta Cancer Board was maintained as a stand-alone entity.
5. 257. In the wake of this restructuring, the Government of Alberta introduced Bill No. 27, in the spring 2003 session. The Act came into force on 1 April 2003, and reorganizes labour relations within the regional health authorities by making the following changes:
   • – establishing region-wide bargaining units for all unionized employees within each of the regional health authorities, and establishing four job-function-based standard bargaining units for all unionized employees within each regional health authority (nurses, auxiliary nurses, paramedical-technical-professional workers, general support workers);
   • – establishing compulsory arbitration as the common dispute resolution system for all unionized bargaining relationships within the regional health authorities;
   • – clarifying severance provisions to ensure that a nominal change of employer due to organizational restructuring – without significant change in years of service, rates of pay, and terms and conditions of employment (as outlined in collective agreements) – did not result in severance;
   • – excluding nurse practitioners from labour relations coverage; and
   • – establishing an implementation process, with the LRB responsible for overseeing the transition.
6. 258. Turning to the AUPE’s allegations, the Government underlines at the onset that the scope of the Act is limited to the nine regional health authorities and their employees. While the AUPE submission makes reference to the “health-care sector”, it is only those workers who are unionized employees of the regional health authorities who are affected by the Act. The Government then addresses the AUPE’s specific allegations.
   • Region-wide bargaining units
7. 259. The Government of Alberta does not agree with the AUPE claim that the Act significantly and dramatically alters the fundamental bargaining rights of unionized employees of the regional health authorities, nor does it agree that it contravenes Convention No. 87. The establishment of region-wide functional bargaining units is entirely consistent with and appropriate to a public health-care system that continues to become functionally interdependent and integrated. Upon the completion of the Act’s implementation process, each of the nine regional health authorities will be responsible for four collective agreements, for a total of 36 agreements throughout all of the authorities. Therefore, the Act is simply a confirmation and rationalization of already-established practice. The Government further observes that these adjustments are in no way radical or unexpected. As discussed above, the structure of health-care labour relations has been greatly influenced by the structure of health-care governance. The LRB, in their 2002 discussion paper Standard Health Care Bargaining Units noted that: “Between 1977 and 1994, geographic bargaining boundaries were generally ‘employer wide’. For example, when the hospital was the employer, the Board’s standard practice was to name the hospital as the employer and describe the unit as ‘all employees when employed in (functional group)’. When hospitals grouped together to form districts, the Board moved to district-wide units, with the district identified as the employer.”
8. 260. For a number of reasons, the LRB did not fully adopt the “employer governance model” approach upon the establishment in 1994 of the regional health authority system. As a result, a patchwork of different bargaining unit descriptions emerged that was not always consistent with the employer’s model of governance. This in turn created considerable uncertainty for health-care employers and unions alike. While stakeholder concern was channelled into dialogue with the LRB over its bargaining unit policies, many parties actively involved with labour relations in the health authorities also adapted their behaviour to fit the new governance structure. Several health-care employers and unions, including the AUPE, have engaged in bargaining either at the regional or even provincial level, though there was no formal requirement to do so. Indeed, with the notable exception of general support services, the majority of bargaining impacting nurses, auxiliary nurses and paramedical professional and paramedical technical personnel appears to take place at least at the regional level. Prior to the Act, the establishment of functional bargaining units had been a matter of LRB policy. However, as early as 1994 the LRB identified that the direction of health-care evolution in the Province was changing, and that increased integration of hospital and community health-care functions and operations was very likely. For example, in the 1994 “T-2 Transitional Bulletin” the LRB contemplated the integration of community health units into acute care units in the event of future regionalization. Further, the LRB, in its 2002 discussion paper, recognized the practical benefit of combining the two paramedical units.
9. 261. The Government submits that the Act contains two key elements: it reintroduces into the Alberta health-care labour relations environment the notion that the employer’s governance structure determines the geographic boundaries of bargaining units; and it involves a move to four functional bargaining units, which apply to all unionized workers in the regional health authorities. The presence of job-function-based bargaining units in Alberta’s unionized health-care industry is nothing new. According to the LRB, functional bargaining units have been in existence for at least 25 years and standard functional units have been used for hospitals and nursing homes since 1972.
10. 262. The choice of four functioning bargaining units (and further the decision to combine paramedical professional and technical units in the Act was not an unforeseen outcome. The move to employer-wide bargaining units and the creation of four functional bargaining units are evolutionary rather than revolutionary in nature, and are entirely intelligible within the context of the health-care community discussions that took place during the LRB’s 2002 consultations on bargaining unit policy. In other words, the Alberta Government does not believe that either employer-wide bargaining units or four (as opposed to five or three) standard functional bargaining units in any way violate fundamental worker rights to freedom of association under Convention No. 87. Health-care trade unions have operated comfortably under LRB bargaining unit policies that recognized standard, functional, and in varying degrees employer-wide bargaining units. Moreover, the extent to which Alberta’s health-care unions have engaged in province-wide bargaining is perhaps some indication that a more rationalized and simplified labour relations structure within the regional health authorities is a reasonable policy choice.
    • Common dispute resolution system
11. 263. As regards the AUPE’s allegation that the Act removed the right to strike from certain health authority workers, the Government states that it is responsible for providing publicly funded and administered health services. As such, patient access and safety cannot be compromised. Like police officers and firefighters, regional health authority health-care employees provide essential services. The Act extends the prohibition on strikes and lockouts to all employees within the regional health authorities: this reflects the growing interdependence and integration of health-care delivery within the regional health authorities. Withholding services could have potentially life-threatening consequences for Alberta citizens whose legitimate health-care needs must be met. Public health-care employees should have a common means to resolve labour disputes that is fair, objective and transparent, without jeopardizing public safety: the Act provides for this.
    • Severance provisions
12. 264. As regards the allegations that bargaining rights for health-care workers in Alberta were altered in violation of Convention No. 87, by removing freely negotiated severance provisions from collective agreements, and that the Government is thereby interfering with the continued functioning of negotiated collective agreements, the Government replies that the restructuring of the regional health authorities was accompanied by a change in governance on the part of some employees of the Alberta Mental Health Board who were transferred to the regional health authorities. While the job functions of the vast majority of these employees were not changed, it appeared that a nominal name change of their employer could lead to these employees having access to severance rights, even though they were substantially unaffected by the change in governance. Section 19 of the Regional Health Authority Collective Bargaining Regulations states that “Notwithstanding any other enactment or the terms of a collective agreement, where there is a change in governance or a restructuring of one or more prescribed entities, no employee of any of the entities is entitled to severance pay or termination pay or other compensation if the employee’s position is substantially the same after the change in governance or restructuring as it was before it”. Health-care employees affected by the Act were transferred wholly to successor employers. All terms and conditions of employment as outlined in their collective agreements continue to be in full force and effect for each and every employee.
    • Nurse practitioners
13. 265. The Government disagrees with the allegation that the Act takes away the right and ability for nurse practitioners to be unionized, noting instead that the role of nurse practitioners has been expanded to such an extent so as to realistically place them in a separate professional category. The role of a nurse practitioner has grown to include such responsibilities as: making independent clinical decisions about diagnosis and treatment; ordering and performing diagnostic tests; and prescribing drugs. The Act recognizes the important role played by nurse practitioners in a reformed public health-care system. For example, recent amendments in July 2002 to the Registered Nurses Providing Extended Health Services Regulation (renamed Nurse Practitioner Regulation) enable nurse practitioners to provide care as independent primary-care providers. Hence, the Labour Relations Code will no longer cover these professionals. Instead, like other independent professionals, they will negotiate their own wages and working conditions that reflect their specific requirements. It should also be noted that like other professionals who are excluded because of the independent nature of their work, nurse practitioners are not restricted from forming or joining professional associations.
    • Transition mechanism
14. 266. As regards the AUPE’s objection to the transition mechanism that the Act established to move the parties to 36 functional bargaining units, the Government does not believe that establishing 36 standard functional bargaining units in any way violates fundamental worker rights to freedom of association. The LRB has been provided with temporary powers to address issues arising out of the move from a large number of collective agreements to 36 in a timely and effective manner. As the transition process is still under way, it would not be appropriate to comment on any rulings or directives that have been issued by the LRB. However, it does appear that the parties are gradually working their way through the transition process without undue disruption or delay.
15. 267. In those circumstances where union representation was in question (primarily in the general support services sector), the decision was left to employees to choose their union representation from among two or more competing unions who demonstrated substantial support in the pre-Act environment. The process was designed to reflect, as much as possible, existing LRB policy on representation votes. Likewise, in those cases where one union was in a clear position of dominance with respect to the functional bargaining unit in question, employees are still given an opportunity to choose between two eligible collective agreements that would serve as the base or template agreement for future negotiations. The Government recognizes that the transition process is complex and has created some hardship for certain trade unions. However, that process was designed to minimize disruption, and extends to employees a primary role in determining how their future labour relations will be conducted. Fundamentally, the transition process ensures that all unionized personnel continue to be represented by a union and covered by a collective agreement.
    • Continued functioning of unions
16. 268. The AUPE alleges that the bargaining rights for health-care workers in Alberta were altered by mandating that those unions which are not successful in representation votes will no longer be able to organize the unorganized workers in the remaining four functional bargaining units. The Government recognizes that the creation of larger and more centralized bargaining units does place restrictions upon the abilities of “losing” trade unions to organize the small number of unorganized workers within the regional health authorities. The decision to restrict “losing” trade unions from organizing “tag end” units outside the region-wide functional bargaining units must be viewed in the context of the high level of union density in the health-care sector in general, and in the regional health authorities in particular. It cannot be argued that this restriction will, in any significant way, jeopardize the ability of regional health authority employees to access unionization if they so desire. The Act may affect the fortunes of a particular union, but it in no way changes the reality that the employees of the regional health authorities are almost entirely unionized. The Government also notes that there is nothing within the Act that inhibits or restricts the ability of a “losing” trade union to attempt to organize the workers within a given region-wide functional bargaining unit as contemplated by the Labour Relations Code.
    • Consultations
17. 269. As regards the alleged lack of consultation prior to the development and introduction of the legislation, the Government recognizes that consultation with stakeholders can be a valuable element in the development of legislation. It is not, however, a requirement of the legislative process. It should be noted that the Act did build on the work of previously referenced LRB consultations on standardized health-care bargaining.
18. 270. The Government concludes that the primary public policy expectation of Albertans on their provincial Government is the effective provision of public health-care services. The Labour Relations (Regional Health Authorities Restructuring) Amendment Act was an administrative change to rationalize labour relations in the public health-care sector, by establishing region-wide bargaining units of all organized employees and four job-function standard-based bargaining units within each RHA. In making this change that will allow for more effective management of public health care, the Government has not compromised the freedom of association of public health-care workers.

C. The Committee’s conclusions

1. 271. The Committee notes that this case concerns alleged violations of the rights to organize and to bargain collectively of workers of the health-care sector, in the context of a legislated restructuring of collective bargaining. The complainant organization alleges that the rights of workers were adversely affected through the speedy adoption of the Labour Relations (Regional Health Authorities Restructuring) Amendment Act (“the Act”), without adequate consultations with trade unions.
2. 272. As regards the restructuring process itself, it is not for the Committee to decide whether it is appropriate to modify the number of functional bargaining units (in this case, to reduce it from five to four) or whether bargaining units should be region-wide, job-based or otherwise: these decisions belong to the Government. The Committee is competent however to decide whether in so doing, the Government complied with freedom of association principles, including those concerning consultations with workers’ organizations. The Committee notes that in spite of the Government’s general statement that there were consultations with health-care stakeholders, the evidence adduced shows that there have been no real and meaningful consultations with trade unions, to the extent that the magnitude of the changes would have warranted. The Committee recalls in this respect that where a government seeks to alter bargaining structures in which it acts directly or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall national interest can be discussed by all parties concerned; such consultations should be undertaken in good faith and both partners should have all the information necessary to make an informed decision; these consultations should be held prior to the introduction of legislation [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 941 and 932]. This is particularly the case in situations such as the present one, where a major restructuring of the collective bargaining regime has profound repercussions (e.g. the delineation of bargaining units; the identification of which collective agreements will apply to which employees; the possible disappearance of existing agreements, the transition process, etc.) and entails a significant financial and organizational impact for the workers’ organizations concerned, including the consequences, financial or otherwise, of the forced “run-off” votes. (The Committee understands that run-off votes are a form of representation vote that are used when two or more unions are in competition over members. A run-off vote is very similar to a conventional successorship vote where competing unions attempt to persuade employees in their own and in another bargaining unit to vote for them: in short, it is a “winner takes all” scenario. Unions involved in run-off votes are permitted to organize employees as if it were a new certification situation, subject to the rules established by the Labour Relations Boards. During a run-off vote, all collective agreements continue to govern the parties to the agreement until the result of the run-off vote is known). The Committee therefore requests the Government to ensure in future that such adequate and meaningful consultations are held in such circumstances and requests the complainant organization to provide additional information on the practical consequences of these changes.
3. 273. While not underestimating the organizational difficulties flowing from such a major restructuring process (which the Government itself acknowledges when stating that the transition process has created some hardship for certain unions) the Committee emphasizes that the paramount consideration is that, notwithstanding the modifications of the collective bargaining structure, all employees should retain their right to organize. The Committee notes in this respect that the Act adds “nurse practitioners” to the list of employees (inter alia: persons performing managerial functions; members of the medical, dental, architectural, engineering or legal profession) excluded from the scope of the Labour Relations Code and therefore deprived of the right to organize. The Committee recalls that the words “without distinction whatsoever” used in Article 2 of Convention No. 87 mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, not only to workers in the private sector but also to civil servants. All public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87) should be able to establish organizations of their own choosing to further and defend the interests of their members [see Digest, op. cit., paras. 205-206]. The Committee therefore requests the Government to amend rapidly the provisions in question so that nurse practitioners recover the right to establish and join organizations of their own choosing, and to keep it informed of developments in this respect.
4. 274. As regards the right to strike, the Committee has acknowledged that it can be restricted or even prohibited in essential services, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and that the hospital and health sectors are essential services. The Committee notes, however, that within these essential services, certain categories of employees, e.g. labourers and gardeners, should not be deprived of the right to strike, as noted by the Committee of Experts on the Application of Conventions and Recommendations (observations 2003 and 2004). At the same time, the Committee has considered that adequate protection should be given to workers deprived of the right to strike, to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such services; these restrictions should thus be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras. 546-547]. The Committee requests the Government to ensure that these principles are fully applied in practice in future rounds of negotiations.
5. 275. As regards the effects of the restructuring process on the severance pay provisions freely negotiated in previous collective agreements, the Committee considers generally that terms and conditions freely negotiated in previous agreements should not be cancelled through subsequent unilateral legislative or administrative measures; were it not the case, social partners could not have any trust in negotiated agreements, which is ultimately detrimental to harmonious and stable labour relations. In the particular circumstances, the Committee notes from the exchange of correspondence between the AUPE and the Alberta Mental Health Board, in March and April 2003, that the parties disagree both on the facts (i.e whether the employees in question were transferred to a successor employer) and on the legal consequences thereof (i.e. whether these employees are entitled to severance pay). Noting that the issue has been referred to arbitration under the applicable Letter of Understanding, the Committee requests the Government to keep it informed of developments and to provide it with the decision issued in this respect.
6. 276. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.