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Injunction suspending application of Bill 9 leaves Kenney government with egg on its face

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Alberta Union of Provincial Employees President Guy Smith speaks wither reporters about Bill 9 earlier this month at the Alberta Legislature (Photo: David J. Climenhaga).

Oh, to have been a fly on the wall at United Conservative Party headquarters last night!

I imagine there were heated words spoken about Justice Eric Macklin's decision just before the close of business yesterday to grant the Alberta Union of Provincial Employees (AUPE) an interim injunction suspending application of Bill 9, the Public Sector Wage Arbitration Deferral Act, until the union's challenge of the law's constitutionality can run its course.

This was not an outcome that could have been predicted with a high degree of certainty, and it leaves the government of Premier Jason Kenney with egg on its face.

AUPE was justified to hail its courtroom success as "a fundamental victory for all workers in Alberta." Said AUPE President Guy Smith in a news release last night: "Justice Macklin also agreed with AUPE that the public has a real interest in ensuring that all parities, including the government, comply with their contractual obligations."

It's hard to imagine the UCP is the sort of organization that reacts to such developments with equanimity.

Still, for the time being, yesterday's decision by a justice of the Alberta Court of Queen's Bench leaves the Kenney government in a difficult position, as well as an embarrassing one.

As has been argued here before, the principal purpose of Bill 9, which allowed the government to break terms and conditions of legal contracts negotiated in good faith by delaying wage arbitrations until after the October federal election, was simply to prevent arbitrators giving public employees like nurses a raise. Potentially, up to 180,000 public-sector workers could have been impacted.

The urgency for a government that had already decided to attack public-sector salaries was that many Alberta public employees' unions negotiated "wage reopener" agreements in their current contracts, which have now reached the point where these wages-only negotiations were about to start or were already underway.

Typically, if parties to a wage-reopener can't reach agreement in collective bargaining, compulsory binding arbitration is triggered. Both AUPE and United Nurses of Alberta, an intervenor in the case, had already reached that place in their negotiations when Bill 9 was passed and proclaimed into law in June.

The UCP must have thought it was being devilishly clever when it derailed that process with Bill 9, arguing unconvincingly this was just a procedural delay while its recently appointed "blue-ribbon" panel got a handle on the province's finances. Union members suspected there was no mystery about what the panel headed by former Saskatchewan finance minister Janice MacKinnon would recommend based on what she has done and written in the past.

Now that strategy doesn't look so clever, especially in light of Justice Macklin's commentary, which to this legal layperson's reading doesn't indicate a lot of confidence in either the government's good intentions or its respect for fundamental rights.

"Members of the public expect that parties to an agreement will honour commitments made in agreements, and they reasonably expect that parties with whom they contract, regardless of who that may be, will honour the terms of the agreement made," he said, noting this is true even when one of the parties is a government.

"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," he stated. This is a conclusion that suggests he thinks AUPE's constitutional argument has merit.

That said, the ruling is not everything the union might have hoped for, including as it does "direction that any wage increases awarded through the interest arbitration shall be held in abeyance until this claim is finally determined."

Still, in the short term, this doesn't leave the government a lot of palatable options if it doesn't want to upset federal Conservative Leader Andrew Scheer's rickety applecart before October 21, when the next federal election is to be held.

Like Doug Ford's calamitous government in Ontario, UCP leaders don't have much choice but to behave -- which must go against their instincts.

They can appeal the ruling, as Finance Minister Travis Toews has already vowed to do. This might succeed, but it seems likely Justice Macklin, aware of this possibility, has crossed his t's and dotted his i's with care.

They could recall the legislature and invoke the Constitution's notwithstanding clause, but that would bring the wrath of voters outside the Prairies crashing down on Scheer's head.

Or they can grind their teeth and plot their next move, after the federal election season has passed. In the meantime, it will be interesting to see how they try to prevent arbitrators from doing their jobs.

Advice to AUPE and other unions: This isn't over. Keep your powder dry.

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions with The Globe and Mail and the Calgary Herald. This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Photo: David J. Climenhaga

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