Alberta judge grants AUPE injunction against Bill 9

A judge has delivered a blow to the provincial government by granting the Alberta Union of Provincial Employees an injunction against Bill 9.

Government plans to appeal decision

AUPE president Guy Smith and the leaders of Alberta's largest public sector unions were at the legislature in June when Bill 9 was introduced. (Emilio Avalos/Radio Canada )

A judge has delivered a blow to the provincial government by granting the Alberta Union of Provincial Employees an injunction against Bill 9, which delayed arbitration talks for thousands of workers.

The ruling by Court of Queen's Bench Justice Eric Macklin suspends the Public Sector Wage Arbitration Deferral Act, which postponed wage talks until Oct. 30. Macklin's ruling means arbitration for 65,000 AUPE members can now continue.

In a ten-page written ruling, Macklin found the AUPE met a three-part test for granting a temporary injunction. 

"A member of the public expects, and is entitled to expect, that an agreement reached with the government will be honoured," Macklin wrote in a decision released late Tuesday afternoon.

"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."

The decision came one day after lawyers for the AUPE requested the injunction in an Edmonton courtroom.

The Alberta government plans to appeal the decision.

"Albertans elected a government that would be responsible with their hard-earned tax dollars," Finance Minister Travis Toews said in a statement.

"Bill 9 is prudent measure. It only provides for a temporary delay to ensure the government has all the relevant financial information before entering into wage negotiations. We will be appealing and seeking an expedited hearing."

The judge agreed with an argument from AUPE lawyer Patrick Nugent that the union would face irreparable harm to its relationship with its employer if the wage arbitration guaranteed in the collective agreement was not upheld. 

"AUPE compromised its position and its rights in order to reach the agreement. As stated above, the term now being amended by the legislation is substantive, therefore Bill 9 is a substantial interference with associational activity," the judge wrote. 

"There will accordingly be irreparable harm to future negotiations, possibly leading to a justifiable refusal to negotiate and compromise. The alleged harm is not the delay in receiving retroactive wage increases — it is the harm to the bargaining relationship between the parties, only one of whom can use its power to amend an 'agreement.' "

AUPE president Guy Smith said the ruling sends a message to the new government. 

"They cannot just run roughshod over things like free collective bargaining rights," Smith said. "It might show how arrogant they've been and how aggressive they've been with overriding those rights."

Smith says the ruling means arbitration hearing scheduled for Aug. 7, 8 and 9 will now go ahead. However, he noted this is the first step in the process. The AUPE is also challenging the constitutionality of Bill 9 with the aim of having it struck down. 

MacKinnon report 

Bill 9 was passed by the Alberta legislature last month after one week of debate. The United Conservative Party government has argued the delay was necessary to get a picture of Alberta's finances before committing to any wage increases. 

The government is awaiting a report from a panel chaired by former Saskatchewan finance minister Janice MacKinnon, which is due on August 15. 

In his decision, Macklin questioned what relevance the panel could have on an arbitrator's decision.

"Given the current highly publicized economic climate in Alberta, it is unclear what other information [the Government of Alberta] would be seeking on Alberta's economy and financial state to support its position," he wrote.

"Further, Alberta's economy and financial state is constantly evolving and changing, so a snapshot at one point in time may not reflect the situation later in negotiations."

The injunction will allow the resumption of wage arbitration talks for three collective agreements affecting 65,000 AUPE members who work for Alberta Health Services or the provincial government. 

The workers agreed to a three-year contract with wage freezes in the first two years, with the understanding that wage talks would be reopened in the final year. The agreement also guaranteed the workers job security until March 30, 2020. 

Under the contract, the wage issue was to be decided by an arbitrator by June 30. But Bill 9 put that process on hold until the end of October. 

The United Nurses of Alberta were intervenors in the AUPE injunction request. 

David Harrigan, the UNA's director of labour relations, said on Facebook that a grievance on Alberta Health Services' request to delay arbitration for the nurses was on hold until Tuesday's decision. 

"UNA will be contacting our legal counsel and AHS tomorrow to follow up on this," Harrigan wrote. "More details will be provided this week."