The consequences could be large and the risk is huge: Mahboubi on use of Notwithstanding clause

Key Concepts

• Notwithstanding Clause: A legislative provision that allows a government to override certain Charter rights for a limited time.
• Labor Negotiations: The process of discussion between employers and employees (or their representatives) to reach an agreement on terms and conditions of employment.
• Collective Bargaining: The process of negotiation between an employer and a group of employees to determine wages, working conditions, and other terms of employment.
• Back-to-Work Legislation: Laws enacted by a government to end a labor strike and compel employees to return to work.
• Adversarial Approach: A confrontational and uncooperative stance between parties in a negotiation or dispute.
• Work to Rule: A form of industrial action where employees do no more than the minimum required by the terms of their contract.

Impact of Alberta's Use of the Notwithstanding Clause on Labor Negotiations

This discussion with Dr. Parisa Maboui, associate director of research at the CD How Institute, focuses on the implications of Alberta's first-time use of the notwithstanding clause to end a teachers' strike and its potential impact on future labor negotiations in Canada.

Concerns Regarding School Closures and Government Intervention

• Impact on Stakeholders: Closing schools is acknowledged as a concerning action due to its direct impact on students, parents, educators, and teachers.
• Method of Ending Strikes: The manner in which the government intervenes and utilizes its tools, specifically the notwithstanding clause, to end a strike is also a significant concern.
• Consequences for Collaboration: This approach is expected to affect the future collaboration between the government and the education sector, leading to consequences for teachers, students, and future bargaining processes, not only in Alberta but also in other provinces.

Shifting Power Dynamics and Erosion of Trust

• Normalization of Government Intervention: If the use of the notwithstanding clause becomes a normalized method for governments to resolve disputes with their workers, it will fundamentally alter the landscape of labor relations.
• Erosion of Trust: This normalization is predicted to erode trust between governments and their employees.
• Power Imbalance: The balance of power between workers and the government in managing disputes will shift. Workers and unions may feel that their ability to advocate for improvements in working conditions and wages is diminished, knowing that the government can unilaterally impose a resolution.
• Ignoring Worker Needs: Dr. Maboui emphasizes that governments should not ignore the needs of workers, as this directly impacts the quality of education students receive. Creating an environment where teachers are well-supported and satisfied with their working conditions is crucial for high-quality education.

Increased Adversarialism and Potential for Radical Actions

• Deterrent to Negotiation: The knowledge that governments can use the notwithstanding clause to order workers back to work may make future negotiations more difficult. Unions might perceive less room for genuine negotiation, potentially leading to a more adversarial approach.
• Risk of Radical Measures: In response, unions might consider more radical forms of industrial action if they believe traditional negotiation avenues are undermined.
• Broader Sectoral Impact: The consequences are not limited to the education sector. This precedent could be applied to other types of negotiations across various sectors and provinces, posing significant risks.

The Trend of Back-to-Work Legislation

• Anecdotal Evidence: There is an anecdotal perception that governments are increasingly resorting to back-to-work legislation to force unions to end strikes.
• Ontario Example (2022): Dr. Maboui cites an instance in 2022 where the government of Ontario attempted such legislation, but it backfired, forcing them to withdraw.
• Dependence on Public Reaction: The success or failure of such government actions depends heavily on the reactions of Canadians, parents, and the general public, as well as the responses from other provinces.
• Importance of Not Normalizing: It is crucial to prevent the normalization of using the notwithstanding clause as a routine tool for dispute resolution.

Dangers of Normalization and Potential Demise of Unions

• Weakening Union Power: If unions lose their ability to meaningfully influence the terms of their employment through negotiation, their fundamental purpose of protecting workers is undermined.
• Recourse for Unions: Currently, the primary recourse for unions and workers is to "speak up" and for parents and Canadians to raise their voices and express concerns about the consequences of such actions.

Strikes vs. Work-to-Rule

• Strikes are Detrimental: Dr. Maboui acknowledges that strikes are generally not beneficial, especially within the education system, citing the negative experiences during COVID-19 school closures.
• Balancing Needs: However, she stresses the equal importance of ensuring that workers and teachers are satisfied with their negotiation terms and working conditions. Both scenarios—school closures and dissatisfied workers—can have negative consequences for students.
• Government Responsibility: The government's role is to listen to unions and teachers, respect their demands, and find mutually agreeable solutions rather than forcing terms upon them.

Potential Impact on the Private Sector

• Broader Application: The use of the notwithstanding clause in labor disputes could create future challenges in the private sector if it becomes a norm.
• Intended Use of the Clause: Dr. Maboui reiterates that the notwithstanding clause is intended for exceptional, unforeseen situations that pose risks to public safety or are critical and cannot be resolved through traditional means. It should not be used for routine matters or situations that can be addressed through conventional negotiation processes.

Conclusion

Alberta's use of the notwithstanding clause to end a teachers' strike sets a concerning precedent. It risks eroding trust, shifting power away from workers, increasing adversarialism in labor relations, and potentially weakening the role of unions. While strikes are detrimental, the satisfaction and fair treatment of workers are equally vital for the effective functioning of essential services like education. The normalization of such government intervention could have far-reaching negative consequences across various sectors in Canada, and public awareness and vocal opposition are identified as key mechanisms for challenging this trend.