Frequently Asked Questions about Job Action

 The Fundamentals of Labour Relations at Alberta PSIs

1)     In Alberta, can Polytechnic Academic Staff at Polytechnics go on Strike?

Yes. An academic staff association, and its members, may only lawfully strike if all the prerequisites under the Labour Relations Code (LRC) have been satisfied, including having held a strike vote supervised by the Labour Relations Board (LRB) that results in a majority of those members who voted supporting strike action. Strike action can only occur in a situation where there is no collective agreement in place, and an Essential Services Agreement (ESA) is either in place or has been waived (see Question 4 for more details).

2)     In Alberta, can Academic Staff at Polytechnic’s be locked out by our employers?

Yes. A Board of Governors may only lawfully lock out academic staff if all the prerequisites under the LRC have been satisfied in the context of collective bargaining with the academic staff association. For more details, please see Question 4 below.

3)     Our Collective Agreement has expired. Is it still in force?

Yes. All collective agreements will have bridging provisions that stipulate that the terms of the existing collective agreement remain in effect after until such time that a new agreement between the FA and Administration supersedes it. This is called the “freeze period.”

During the freeze period, employers are prohibited from unilaterally altering working conditions or compensation. Further, collective agreements remain in force once notice to commence bargaining has been served, as per section 130 of the LRC, and remain in effect until such time that a new agreement has been reached or a strike or lockout commences. While the terms of the agreement continue to be followed while the two sides are negotiating in good faith, once strike or lockout begins (see questions 7-12 for more information) the agreement is no longer valid.

Finally, if members of an FA vote to decertify their bargaining agent (ie: their FA), the terms of the agreement are nullified.

4)     Under what circumstances would a strike or lockout occur?

There would have to be several prerequisites reached before FAs could strike or the employer could legally lock us out – these are contained in sections 73 and 74 of Alberta’s Labour Relations Code (LRC).

These prerequisites include:

• The existing Collective Agreement is not in force – it has expired. (see above in Question 3 for more information)

• An Essential Services Agreement (ESA) has been filed or an exemption granted;

• A qualifying strike/lockout vote must have been held (and it must remain current, the results must have been filed with the Labour Relations Board, and the majority vote must have been in favour of strike/lockout action). More on this below in Question 5.

• Strike/lockout notice must be served on the other party at least 72 hours in advance, and the notice must then be provided to the appointed mediator;

• The strike/lockout must commence on the day, time, and location specified in the notice; and

• In a situation in which a disputes inquiry board has been established before the commencement of the strike/lockout, a strike or lockout may take place only if the applicable timelines under s. 105(3) have expired.

• A disputes inquiry board is a third-party body appointed by the Minister of Labour to seek a mutually acceptable solution. They may also hold votes of either or both parties to the dispute on those recommendations in order to facilitate independent results.

• No strike can occur until this process has run its course, including 10 days between service of recommendations to the Minister, or 72 hours after a vote supervised by the board.  

5)     What does the process of a strike vote look like?

There is an orderly process for a strike/lockout vote that must be followed by each side, which is prescribed in Alberta’s Labour Relations Code.

Here are some key milestones in the process:

• A faculty association/employer may only apply to the Labour Relations Board (LRB) to supervise a strike/lockout vote after a mediator has been appointed and the applicable cooling-off period has expired (more info in section 75 of the LRC).

• A faculty association must apply to the LRB to supervise a strike vote at least 7 calendar days prior to the date of the proposed vote, and an employer must apply to the LRB to supervise a lockout vote at least 14 days prior to the date of the proposed vote.

• If a strike/lockout does not occur within 120 days of the day the strike/lockout vote occurred, the vote is deemed void and a new vote is necessary to conduct a lawful strike/lockout (more info in section 77 of the LRC).

6)     If our faculty association holds a strike vote, and it passes, does this mean that we are going to go on strike?

Not necessarily.

The Faculty Association bargaining team may hold a strike vote in order to strengthen its bargaining position. A certified strike vote with a strong mandate may signify to the employer that FA members are serious, and will take job action if demands are not dealt with substantively. Effectively, the FA will be in a legal position to strike, but the ultimate decision to take job action will be in the hands of FA leadership for the 120 days following a successful strike vote.

Questions about what happens during a strike

7)     Do negotiations continue during a strike or lockout?

Yes.

If job action occurs, both sides will continue to negotiate to bring the work stoppage to an end. If the strike or lockout lasts for an extended period additional resolution tools such as those described in Question 13 may be used to bring the two sides closer together and reach a settlement. As per Question 3, the Collective Agreement is not in force during a strike or lockout, however.

8)     Will I get my usual pay if there is a strike or lockout at my institution?

NO, the employer is not obligated to pay a striking employee.

However the strike defense funds established by individual associations as well as by ACIFA are intended to provide compensation for striking employees who participate in faculty association activities during job action. This compensation will vary from faculty association to faculty association, but the intention is that these funds would provide limited compensation to those who participate in association activities such as picketing or other support activities during a strike or lock-out.

9)     What happens to my pension and health benefits during a strike/lockout?

This will vary from institution to institution.

Alberta’s LRC prohibits employers from denying benefits that employees would be normally entitled to such as health, dental, and other insurance programs or benefits. For the duration of the job action, the FA would be responsible for paying the employer’s share of these benefits rather than the institution if they are in a position to do so. Section 155 of the LRC prohibits employers from rejecting these payments.

As for pensions, the Board has ruled in ATA v. County of Stettler that all accumulated pension benefits accrued before a strike (ie: years of service) remain with the member through and after the strike. It is unlikely that a member would continue to earn pensionable service through the duration of job action, but this may be negotiated as part of the settlement of the job action. It is expected that pensionable service would continue to be accrued once a member returns to work after the job action.

10) Where does the money come from to support members if there is a strike/lockout?

The money comes from one of two places:

• Defense funds set up by individual Faculty Associations to support bargaining.

• The ACIFA Defense Fund of which most FAs in the province are members. This works almost like an insurance program for academic staff in the province.

11) What will be expected of me if our FA goes on strike or is locked out?

Generally, you will be expected to participate in FA activities such as picketing and other events should your unit go on strike.

Each FA will have their own system for handling these sorts of events, and their own expectations for your time.

12) How does a strike or lockout end?

There are three ways, identified in Alberta’s Labour Relations Code, in which a strike or lockout may end, depending on the circumstances surrounding the action.

Section 90 of the LRC prescribes three ways in which a strike or lockout may end:

• A negotiated settlement between the bargaining agent (ie: the faculty association) and the employer

• Termination of bargaining rights of the bargaining agent (eg: members vote to join another union, or to decertify the union – this is unlikely to occur)

• A period of two years elapses from the date the strike or lockout began.

13) What happens when a strike/lockout ends?

The answer to this depends greatly on the situation in which the action ends, and the terms on which it began.

First, it should be said that when a strike or lockout ends, employees are entitled, on request, to resume employment (so long as the employer continues to engage persons to perform the same or similar work). This includes preference before replacement workers (sometimes known as scabs) who may have been engaged during the dispute.

However, the terms of that resumption of employment depends on how the dispute is ended, and how it was begun.

If the dispute was a lockout and a lockout alone (there was no legal strike notice provided to the employer after the lockout notice was served), and the employer unilaterally ends the lockout, resumption of work will be on terms that the employer and employee agree on (as per section 90, clause 4 of the LRC). That is, the previous collective agreement no longer applies and the employer is in a position to unilaterally impose employment terms on returning employees (often in the form of the last offer made by the employer in bargaining).

The only way to resist this scenario from happening is for the union to also go on (lawful) strike.

If a lockout occurs concurrent to a strike action, then the most common end of the dispute will be a settlement between the faculty association and the employer. In this instance, the terms of return, including what members can expect as terms of employment going forward, will be negotiated as part of the collective agreement process.

It’s important to remember that throughout a work stoppage, negotiations continue and that return-to work provisions will be important parts of those conversations.

In addition to negotiated settlements between parties, there are other alternative dispute resolution mechanisms that may be used to end strikes or lockouts. The Minister of Labour may appoint a disputes inquiry board to propose new solutions to the dispute, and if both parties agree, those suggestions become binding on each party. The disputes inquiry board may hold its own polling of both employees and the employer to understand if its suggestions are palatable to the parties of the dispute.

Section 93 of the Act also allows parties to a dispute to request voluntary interest arbitration to effect a settlement. This requires both parties to voluntarily consent to this process and the decision of the arbitration panel is binding on each party.

Finally, there is the possibility that government may legislate parties back to work. This is often viewed as a last resort, and requires a specific Act of the Legislature to be passed.

Questions related to Job Action Taken by Non-FA Bargaining Units

14) If the employer shuts down operations due to a strike/lockout of support staff (eg: AUPE locals), can Academic Staff also be locked out?

Only if the employer is legally entitled to lock us out with regard to its bargaining with academic staff. If the non-academic staff association were to be locked-out or go on strike, and the Board of Governors were to decide to shut down operations, then unless the Board of Governors were also in a position to lawfully lock out the academic staff as well, then the actions that the Board of Governors could take with regard to the academic staff would be governed by the specific collective agreement between it and its academic staff association.

15) If other bargaining units like AUPE go on strike at my institution, am I required to cross the picket line?

This depends on your own collective agreement with the employer. Unless your specific collective agreement contains a clause giving academic staff the right not to cross others’ lawful picket lines, the academic staff member is obliged to do so in fulfilling the terms of their employment, subject to valid justifications (eg: sick leave, personal leave day, etc.).

16) Can the institution ask me to perform work that I believe would normally be performed by someone who is on strike?  Am I required to perform that task?

The institution can ask you to perform this work, however, section 149 of the LRC prohibits an employer from sanctioning an employee for refusing work of a striking employee. However, caution must be exercised in this instance, as section 85 of the LRC sets out that this is not a sufficient reason to refuse work and may constitute an illegal strike. If FA members in concert with one another collectively refuse to do work that would otherwise be performed by AUPE members (for instance), this could amount to an illegal strike and bring grave consequences for the FA.

In short, if you are asked to perform a task that would otherwise be performed by a member of another bargaining unit, please consult with your individual faculty association.

17) What if, because work is not being performed by members of other bargaining units, my workplace becomes unsafe?

Some FA members may be concerned that if AUPE members are on strike and thus not performing their work to keep our classrooms and facilities clean and safe, that our workplaces will become unsafe. Successfully refusing work due to health and/or safety concerns resulting from another union's legal strike action would very much depend on the specific facts of the situation.

Under the Alberta Occupational Health and Safety Act, employees are permitted to "refuse to work or to do particular work at a work site if the worker believes on reasonable grounds that there is a dangerous condition at the work site or that the work site constitutes a danger to the worker's health and safety or to the health and safety of another worker or another person" (s. 31) The test for assessing a work refusal is whether the employee had "an honest and reasonable belief that the ordered work is unsafe. Having to cross a non-violent picket line will likely not meet this test.

It is also important to note that a refusing employee is not necessarily permitted to leave the workplace completely if the dangerous condition is confined. An employer may assign different duties to the employee. How this would play out in a unionized post-secondary institution may pose unique challenges, but it may be possible that the Polytechnic could, for instance, provide safe alternative work areas for refusing employees.

18) Could I participate/support other unions’ strike action?

That depends on a number of factors.

We will often want to support our colleagues in other bargaining units, and it is important that we work together to improve our institutions. However, we should remember that refusing to cross a picket line would be considered an illegal strike and could bring sanction from the employer, unless it is a specifically protected right in your collective agreement.

However, there are a number of ways in which members of FAs can support members of other bargaining units if there is job action taken by those workers. We should note that this activity can only technically occur during time in which you would normally not be employed by your employer. As always, please consult your faculty association prior to participating to ensure that you understand the relevant concerns.