The Alberta government used the notwithstanding clause to end the teachers’ strike, imposing a three-year contract. Jason Foster, a labour relations professor with Athabasca University, says the government’s move breaches charter rights and sets a troubling precedent for public sector bargaining. He speaks with Alberta Primetime host Michael Higgins. This transcript has been edited for length and clarity. Michael Higgins: How necessary was it for the government to use the notwithstanding clause in taking away teachers’ right to strike? Jason Foster: This bill took multiple steps farther than it needed to to end this strike. We see back-to-work legislation frequently, and most of the time, they’ll order the workers back to work and they’ll impose binding arbitration. Binding arbitration isn’t ideal. It’s got its own problems, but at least it’s still a legitimate part of the labour relations process. Imposing the contract and then using the notwithstanding clause is something of a “sledgehammer” that they probably didn’t need. They didn’t need to go this far in order to solve this problem. MH: Where does this leave teachers? Do they just take this and move on? JF: We’ll have to see what they decide in the next day or two. They certainly have a couple of options. They could refuse to go back and continue their strike. The bill has hefty penalties for doing so, but they certainly could do it. The airline attendants for Air Canada did it last summer. They could go back to work and say, “Okay well, we tried” and accept the outcome. Or they could do something on middle ground where they go back to work. But then certain activities, the voluntary activities that every teacher does to help keep the school running and give the kids an enhanced experience, they may choose to not do that stuff anymore because they’re so mad. The next few days, we’ll see what they do but those are the options they have. MH: How does this end up reflecting on the Smith government? Use of the notwithstanding clause, it’s essentially an admission that they know they’re impairing a constitutional right, is it not? JF: That’s exactly how I see this. This is an admission that they are breaching the charter. So that means they know that they are trampling on the teachers’ rights. They’re doing so in a couple of different ways and they’re just trying to escape the consequences of taking that action. We have a tried and true system of checks and balances where legislatures legislate, but then the courts can decide whether that indeed is constitutional and appropriate for them to do. By eliminating that check and balance that the judiciary offers, it kind of makes them unaccountable. They’re not accountable to anybody for trampling on these rights. I think the other concern, as we think about the bigger picture, is this sends a very ominous message to other public sector workers in Alberta. It also has the potential to create an unfortunate precedent for governments and other jurisdictions. MH: Where does that leave the process of public sector bargaining in our province moving forward? JF: There are still a number of important contracts that need to be negotiated. You could say that it leaves it in a bit of tatters. If you were a union right now at the bargaining table, the message seems to be clearly, “If you don’t accept what we’re offering, we’ll just force it on you anyway.” One of the things we find about this kind of government intervention in bargaining is that it eliminates the employer’s interest or motivation to negotiate. Because why would you negotiate if the government could just impose the deal that you want them to impose? It really does break down the bargaining relationship. It makes what’s happening at the bargaining table irrelevant in many, many ways and it creates a wide range of problems. MH: Would you go so far as to say that at this stage, provincial governments are normalizing use of the notwithstanding clause? JF: Yes, I think that’s why this is so concerning. We’ve been seeing increased use of the notwithstanding clause, in general, on other issues. This would be a troubling expansion of using the notwithstanding clause in labour relations matters and that’s something that’s generally not done. If this is a turning point where governments start to do that, that’s something that I would think that unions across the country should be concerned about. MH: When it comes to response and potential blowback, is this something that remains within the labour sector? JF: We’ll see what happens over the next couple of days, but I do think this is the kind of thing that gets labour movements riled up. They see this contravening of basic, fundamental labour rights, they see that as an existential challenge and that’s the kind of thing that could cause labour movements to rise up. Which means we could actually see an expansion of this dispute, especially if some of the national unions start paying attention and start turning some of their resources this way. We could be in for a very tumultuous time. MH: In terms of a strong response, it may come from even outside our provincial boundaries? It may not only be here in Alberta? JF: I think that’s entirely possible. I think that may have been a calculation that the government neglected to make, is that by using the notwithstanding clause, they draw the attention not just of teachers and the Alberta labour movement, but of every union in the country. Because their concern is the clause being used on them next, so they want to try and prevent that from happening. MH: Do you see parents doing anything in the wake of this? Or do you see families move on and school just continues? JF: I’m hearing that there are some students in the Edmonton area who are organizing a walkout for later this week in protest. Clearly, at least some of the students aren’t prepared to just let go of it and move on. I can respect that most families though are relieved to be through these three and a half weeks of challenging times and are probably grateful just to get life routines going again. I can totally respect that. But to be clear, this legislation didn’t solve the conflict. It’s just kicked it down the road into the future and it will bubble up again.
