A REVIEW OF ALBERTA'S BILL 12
Edmonton - Saturday, March 16, 2002 - by: Ron Thornton
Falls short of being fair	It is a bill that concerns even some of the usual supporters of Ralph Klein's Progressive Conservative government, one that is viewed as an Act that simply goes too far. In reviewing Bill 12, section by section, it would appear to fall short in ensuring a fair and independent process to settle current disputes between the Alberta Teacher's Association and many of the province's school boards. For example, we read of the Alberta government's commitment to examine the province's learning system in a study that will include, at least, a review of the number of students in a class, pupil-to-teacher ratios and the maximum time a teacher may be required to instruct students enrolled in Kindergarten to Grade 12. In the meantime, it is taking such items out of any further negotiations or inclusion in any collective agreements between the two sides involved, the respective school district and the Alberta Teacher's Association, as cited in Section 23 of Act. There does not appear to be a stated deadline for the study to be completed and its recommendations reviewed or implemented.
SECTION 1.
	The term "strike" has been expanded to include any cessation of work; a refusal to work or to continue to work by two or more employees acting in combination or in concert or in accordance with a common understanding; a concerted activity by two or more employees to refuse to comply with responsibilities assigned by their principal or their employer. It would appear that anyone who collectively with as few as one other person refuses to work or perform their assigned responsibilities, however their employer defines them, would be violation of the agreement.
SECTION 2.
	A status report must be submitted by the Alberta Teacher's Association and the School Board Association, either jointly or separately, the items the parties have or have not resolved. This must be done within five days after the Act comes into force or at a later date authorized by the Minister of Learning. If either side fails to submit a report, then the one submitted will be the only one considered. This status report is not to include anything in regards to strikes, lockouts, or notice of employee obligations. Five days after the Act comes into force, or a date to which the deadline was extended, all status reports will be submitted by the Minister of Learning to the Minister of Human Resources and Employment.
SECTION 3.
	At a date set by the Minister of Human Resources and Employment (before or after 5 days from when this Act comes into force) both sides must nominate, in writing, one person to a arbitration tribunal. As soon as possible after being notification of a unresolved dispute, the Minister of Human Resources and Employment will establish an arbitration tribunal, appoint the nominees of the two sides to it, and appoint one additional person to serve as a member and chair of the tribunal. The chair shall receive the appropriate status reports for distribution. Should either side fail to nominate a person to serve on the tribunal, the Minister may appoint his own on their behalf. Upon receipt of the status reports from the Minister, the tribunal assumes jurisdiction to resolve the dispute, subject to Section 23 (those items not allowed to be covered) and must make an award in respect to the Alberta Teacher's Association and each employer for each item in dispute. Should a vacancy occur on the tribunal, a new member may be appointed in the same way the original member was appointed. This suggests that the replacement of a member appointed by the Minister would also be appointed the same way. Further, there does not seem to be any kind of criteria or process detailed in regards to the third-party appointment of the tribunal's chair. It would appear to be open to anyone the government desires to appoint to such a position.
SECTION 4.
	If the Minister of Human Resources and Employment is of the opinion that a member of the tribunal is delaying proceedings in an unacceptable manner they may have their appointment to the tribunal revoked, with the Minister appointing a replacement. There does not appear to be any impediment from the replacement being named from outside the respective side's membership or interest group, nor is there any criteria presented as to what would be considered as unacceptable delays, nor is there any appeal process.
SECTION 5.
	If the tribunal is unable to effect a settlement between the association and the employer, they must determine what methods of dispute resolution should be used to do so, including the use of arbitration, mediation, a combination of the two, or a "final offer selection" form of arbitration.
SECTION 6.
	Wages and benefits settlements are to be made with consideration given to those in the private, public, unionized, and non-unionized sectors, as well as those enjoyed in other Canadian jurisdictions. Further to be considered are such conditions as employment levels, incidences of layoffs, part-time employment levels, opportunity of employment, as well as the economic considerations of the province and the specific jurisdiction in question. Even further, other factors to be considered would be the terms and conditions of employment in similar occupations affected by any geographical, industrial or other variation the tribunal considers as relevant. Yet other factors would include the conditions of employment between different level classifications as they can be compared to outside jurisdictions, and the level of qualifications necessary to provide the services required. To define this in layman's terms, a university professor in Edmonton would not get full value teaching primary school in rural Alberta. In short, we should not expect a uniform set of wages and benefits province-wide. Any award is to be implemented without an employer incurring a deficit or a greater deficit than what already exists, during the term of the new agreement. While this promotes the cause of more transparency and public disclosure in regards to School Board funding and expenditures, there does not appear to be any guarantees that this will be the case. The Minister of Learning may, though is not under obligation to, make available to the tribunal any requested information they request.
SECTIONS 7,8.
	All disputes must be resolved by August 31, 2002, though the government may allow an extension to the deadline. The decision of the tribunal is binding and must be included in the terms of a collective agreement. Awards of the tribunal are the sole province of the chair, unless the employer and the Alberta Teacher's Association are in agreement to a different award. This would seem a clear indication that unless there is agreement between the two sides, the chair will unilaterally impose its own award.
SECTION 9.
	The parties must enter into a collective agreement those items agreed upon, not including anything in regards to Section 23 and any award imposed by the chair should the sides not be in agreement.
SECTION 10.
	If either side refuses or fails to participate in the preparation of the collective agreement as outlined in Section 9, then the other party may do so unilaterally and submit it to the tribunal to certify that the collective agreement accurately incorporates the tribunal's award. Upon this being satisfied, the collective agreement then comes into effect.
SECTION 11.
	Should a question arise within 30-days of the award being made by either of the parties, the Minister of Learning may, though it would appear is under no obligation to do so, direct the chair to reconvene the tribunal in order to decide the question. After this is done, a copy must be forwarded to the Minister of Learning and both sides, with such a decision binding and forms part of the terms of the collective agreement.
SECTION 12.
	When an award is made, the tribunal files copies with the Minister of Learning, the employer, and the Alberta Teacher's Association. How or if the award is published is at the discretion of the Minister of Learning.
SECTION 13.
	There is no judicial or any other legal review or recourse allowed regarding any decision, order, directive, ruling, award, or proceeding of the tribunal. In short, nothing can be questioned and nothing can be appealed. In fact, the only grounds the actions of the tribunal can be challenged are in circumstances where it can be shown that the tribunal acted outside its authority or jurisdiction. Even so, the original notice must be filed with the Court of Queen's Bench no later than 30-days after the decision, order, or award was made. This does not in any way make invalid any award with respect to the non-challenged items, unless the Court otherwise directs.
SECTIONS 14, 15.
	The tribunal may determine its own procedure, and may proceed even if one of the parties is not present. A member of the tribunal may administer an oath to a person appearing before it. The tribunal has jurisdiction to decide if any item is in dispute, whether it is subject to arbitration or can be included in the collective agreement. This may cause some to be concerned with process as being perceived as a kangaroo court situation, with the possibility of at least one side not truly represented (especially if its inclusion in the tribunal were unilaterally revoked by the chair) and with the chair having the power to unilaterally deem any issue as "not in dispute" or even if it is subject to any arbitration process. Again, Section 23 is stated as being outside the scope of the tribunal, "except for the purposes of determining arbitrability."
SECTION 16.
	The tribunal may accept any oral or written evidence it considers appropriate, be it admissible in a court of law or not, nor is the tribunal bound by the laws of evidence as applicable to judicial proceedings. This would appear to open the door to the inclusion of here-say testimony and to the exclusion of anything the chair may arbitrarily decide as not being appropriate, admissible, or even relevant. Further, the tribunal may summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce the documents and things that the tribunal considers necessary to fully investigate and consider matters within its jurisdiction, in the same manner as a court of record in civil cases. As well, should any person fails to comply with an order of the arbitration tribunal, or conducts himself or herself in a manner that may be in contempt of the tribunal or its proceedings, the tribunal may apply to the Court of Queen's Bench for an order directing compliance with the tribunal's order, or restraining any conduct found by the Court to be in contempt of the tribunal or its proceedings. On application, the Court may grant any order that, in the opinion of the Court, is necessary to enable the arbitration tribunal to carry out its responsibilities. Taking into account the powers of the government to appoint a chair, the described powers of the chair, and the already outlined lack of recourse by the parties involved, there could be the concern that this would introduce the possibility of intimidation tactics to this process. It is interesting to note all the legal remedies given to the tribunal and, through its appointed chair, the government, there are essentially no such remedies allowed for either the employer and especially for the Alberta Teacher's Association.
SECTION 17.
	It is up to the sole discretion of the chair to decide when and where the tribunal meets. The chair must notify each member of the tribunal as to the date, time, and place of each meeting, which may be held in private instead of being conducted in an open forum. With the powers already given to the chair and the government in the process, having the tribunals conduct meetings in secrecy may well unsettle public confidence in this being an open, honest, and just approach to seeking resolution.
SECTION 18.
	The two-sides must pay the remuneration and expenses of their nominees, or the person appointed by the government to act on their behalf, while the government is responsible for doing the same for its appointed chair of the tribunal as well as the administrative costs. In what should be a procedure to seek fair resolution, we have the chair appointed by the government, paid by the government, and given arbitrary powers to decide the course of the tribunal deliberations, and even those who serve on it. Many will view the chair as anything but impartial.
SECTION 19.
	Executive privilege may be cited by any member of Cabinet or department head in Alberta's public service to refuse to produce any document before the tribunal, citing that it is not in the public interest to disclose its contents or that it would prejudice the interests of others not concerned in the proceedings.
SECTIONS 20, 21, 22.
	Members of the tribunal, including the chair, can not be compelled to be a witness in any proceedings before any court, other than a public inquiry, in respect to the tribunal's proceedings or any information that had been presented before it. No legal action may be taken against any member of the tribunal for anything they may have done in good faith while acting under the provisions of this Act. A collective agreement between the employer and the Alberta Teacher's Association does not need to be signed in order to be binding.
SECTION 23.
	No collective agreement entered into on or after March 11, 2002 can contain any provisions in regards to the number of students in a class; pupil-to-teacher ratios or student-to-teacher ratios; or the maximum time a teacher may be required to instruct students. Such a provision will be of no effect, and regardless as to any agreement to the contrary, the term of such a contract expires on August 31, 2002.
SECTION 24.
	All collective agreements existing prior to March 11, 2002 will continue in force under a collective agreement is entered into under the provisions of this Act. If no collective agreement is in place on that date, then their previous agreement will be reinstated until a new agreement is entered into under the provisions of this Act.
SECTIONS 25, 26.
	The right to strike or lockout is no longer permitted to either side and any such action will be considered as unlawful. The right to "work-to-rule" via slowdown or diminution is not permitted.
SECTIONS 27, 28.
	Both sides must inform their membership of their obligations under the provisions of this Act, and the teachers must not be impeded in complying with their obligations. No one is to so much as attempt to impede or prevent the teachers, or threaten to discipline a teacher, from complying with their obligations under the Act
SECTIONS 29, 30.
	The Labour Relations Code no longer applies to either side, except for those areas permitted to apply under the provisions of this Act. In essence, the Labour Relations Code has been amended as to how it applies to the Alberta Teacher's Association and its employers. Among its provisions it allows for, should a strike take place as defined in this Act, the deduction and remittance of union dues to the Association can be suspended for up to six months, which could open the door for non-union employees. The provisions of this Act preclude any provisions of the Labour Relations Code, and the Arbitration Act does not apply to this Act.
SECTION 31.
	All the provisions of the Labour Relations Code relating to the powers, jurisdiction and remedies of the Labour Relations Board, its chair, vice-chairs, members and officers, hearings procedure, enforcement of orders, appeals and rights, privileges and immunities of the Board apply if those matters are not specifically provided for in this Act. The Board may also decide for the purposes of this Act whether a person is considered an employee or a teacher, if a collective agreement has been entered into, what does or does not constitute part of a collective agreement, who is bound by that agreement, if an agreement has been entered into on behalf of any person, and if a collective agreement is in effect. The Board's decision is final and binding. In questions about the application or operation of this Act arises, and it is definitely not under the jurisdiction of the tribunal to render a decision, then such matters must be referred to the Labour Relations Board.
SECTION 32.
	Where given the exclusive jurisdiction under Section 31, the Labour Relations Board will exercise its powers subject to its own reconsideration, which it may affirm or alter. None of its decisions or proceedings may be questioned or reviewed in any court, except in areas where it can be shown that it overstepped its own authority or jurisdiction.
SECTIONS 33, 34, 35, 36.
	The penalty to the Alberta Teacher's Association for a strike, as defined by this Act, can be up to $1000 per day or part of a day the strike occurs. Any of its representatives who so much as consents to such a strike is liable for a fine of up to $10,000. Any person not connected to the Alberta Teacher's Association who strikes or causes a strike is liable for a fine of up to $1000. There are similar fines in case of a lockout against the employer. Any person who fails to comply with this Act is guilty of an offence and liable for a fine of up to $1000. Any prosecutions for any offence under this Act may be commenced only with the written consent of the Minister of Justice and Attorney General.
SECTION 37.
	The proceedings, negotiations, mediation, and other rights or privileges under the Labour Relations Code remain in effect provided they are not inconsistent with the provisions of this Act. Those that are must cease immediately and be terminated.
SECTION 38.
	This would include the Elk Island Catholic Separate Regional Division and ATA to the schedule of those covered by this Act should they have failed to ratify a collective agreement by March 15, 2002.
SECTION 39.
	This amends the School Act, Section 97, which covers some employment provisions.
SECTION 40.
	This Act will be repealed no later than August 31, 2003, though that would not affect a collective agreement that continues as a collective agreement under the Labour Relations Code.
Summation:
	The way the government has perverted the arbitration process in this matter, I believe, is a major mistake on its part. The power of the government through its appointed chair as well as the lack of guidelines in regards as to whom can be appointed by the government or the Minister of Human Resources and Employment to serve on these tribunals threatens to strip the Act of any moral authority. It would have been more honorable to simply impose the will of the government in order to reach a resolution of these issues than to go through this charade of an "arbitration tribunal." I urge the government to reconsider these portions of the Act and make appropriate amendments to ensure the independence and integrity of the process and those who serve on such tribunals.
	Ron Thornton
References:
	The actual bill in its full text as passed by the Alberta Legislature Thursday night, march 14, 2002
	Alberta Teachers Association assessment and analysis of Bill - 12
	Alberta Teachers Association page for teachers to assist with interpreting Bill - 12
	Association's support of Bill 12 riles Edmonton Public Schools  alberta news Friday , Mar 15, 2002
	Government of Alberta web site:March 14, 2002 Keeping students in class the purpose of teacher arbitration legislation
	Government of Alberta News Release: March 14, 2002 Education Services Settlement Act sets arbitration process in motion
	Biography of Alberta Premier Ralph Klein