2005 December Speaking Notes AFL All-union Meeting to discuss FOIP Revelations about the Labour Relations Board

Gil McGowan, President of the Alberta Federation of Labour, December 2, 2005

Two-and-a-half years ago, the Alberta government made some sweeping changes to the labour laws covering health care workers in this province.

The government tried to argue that Bill 27 was nothing more than administrative house-keeping. They said it was about simplification, streamlining and efficiency.

But from our perspective, it was something much more serious. It was a law essentially drafted to force concessions from health care unions that the regional health authorities had been unable to win at the bargaining table.

Bill 27 allowed the government to tear up dozens of freely negotiated contracts covering the pay and working conditions of tens of thousands of health care workers.

It forced unions into run-off votes, denying many workers the right to choose the union they actually preferred.

And it removed the legal right to strike from thousands of union members in areas like Community Health, Mental Health and Extended Care - without even attempting to justify how it would threaten the public interest if a speech pathologist, physiotherapist or community health nurse walked a picket line.

We've had our share of anti-union labour laws thrown at us in the province - but Bill 27 has to rank among the worst.

Our concerns about the substance of the law were profound - but we also had serious concerns about the process.

In particular, we were concerned about the role employers may have played in introducing, designing and drafting the legislation.

In an attempt to substantiate these concerns we filed a series of Freedom of Information requests with the Department of Health and Wellness, the Department of Human Resources and Employment and the Labour Relations Board.

The responses we received to these requests only heightened our concerns. The Health department and the Human Resources Department disclosed boxes of documents - most of which turned out to be innocuous. But from the LRB, we got nothing.

The Board refused to release any documents, saying they were all covered by exemptions within the FOIP act.

This blanket refusal, coupled with a few hints from documents from Health and Human Resources, raised a number of red flags for us. In particular, we started to suspect that we had stumbled onto something even bigger than what we had initially thought. We had been worried about the government cozying up with employers. But now we started to have grave concerns about the role that the Labour Relations Board in the whole process.

As we all know, the LRB is the quasi-judicial board that over-sees the administration and application of labour laws covering unionize workplaces in Alberta.

It is the referee, the traffic cop, the court of appeal in matters of labour relations.

It is also - and this is crucial - supposed to be independent and impartial. And by independent, we mean arms-length from government and free from influence by either the unions or the employers that appear before it.

However, at least when it came to Bill 27, the more we learned, the more it appeared that the Board's independence had been compromised. In particular, we were getting hints that the LRB was taking a direct role in drafting Bill 27.

We had no smoking gun. But, if it was true that the Board was working with government on Bill 27 this was very serious & because the LRB would have crossed an important line & they would have gone from interpreting the law, to writing it.

The LRB and Clint Dunford, who was Minister of Human Resources at the time, essentially said we were paranoid & that we were chasing shadows.

While Dunford admitted that there might have been some consultation on technical matters, the he said emphatically that the Bill was written by the politicians, not the LRB. In fact, in one newspaper article that we've included in your information package, he is quoted as saying the board had no role in drafting Bill 27.

But we weren't satisfied with those reassurances.

We had a hard time believing that the LRB had no documents related to Bill 27 or that all of them were covered by FOIP exemptions. So we did what was our right to do & we appealed the whole case to the information commissioner's office. And then, we waited.

And that's where things stood until late last week. On the evening of Wednesday, November 23, our lawyer received a letter and a few documents from the information commissioner's office - you'll find them in the package we've prepared for you.

There are only a few short documents here. But they prove what we have suspected all along & namely, that the independence of the LRB was compromised during the Bill 27 process.

What these documents show is not only that the LRB was playing an active role in drafting labour laws that they where only supposed to be policing and interpreting & the LRB was also actively working with employers to determine what the law should look like.

In the e-mail, dated March 11, 2003 and labelled number 50 by the information commissioner, Bruce Baugh (who is a government lawyer whose job it is to write legislation) says he has followed instructions from LRB Vice-chair Les Wallace.

And in the e-mail dated March 4, 2003 and labelled number 95 - Les Wallace himself provides an outline of what he says Bill 27 should look like. And he goes further. He says he has consulted with Damien Bailey, a senior lawyer from the firm McLellan and Ross - who act as counsel for a number of major health authorities. In particular, Wallace says he had discussions with Mr. Bailey about how the section of the regulation dealing with severance should be worded.

We've done some digging - and the section of Bill 27 they were talking about is the one that took away severance pay from a large group of Mental Health workers, who at the time were represented by the Alberta Union of Provincial Employees.

From our perspective, this is nothing short of a scandal.

What's happened here is that, the LRB abandoned its independence. It's supposed to be an independent, third party arbiter - but it allowed itself to essentially become another branch of government.

And even worse, it took advice and direction from employers who had a vested interest in watering down contracts for health care workers.

This is a clear violation of the central role of the Labour Relations Board. And it is a clear conflict of interest.

All of us in this room understand why all of this is upsetting for the labour movement. But for members of press let me use a sports analogy.

Here in Edmonton, we've just watched our football team win the Grey Cup. How would Eskimo fans feel if there were ten seconds on the clock, Edmonton is third and goal - and then the referee goes to the Montreal bench to consult on a crucial penalty call.

That's what's happened to union and working people in this case. The referee is helping the other side to win.

The government passed one of the most sweeping - and we would argue damaging and unfair - pieces of labour legislation in Alberta history. And, instead of remaining impartial, the LRB has consulted with the other team.

In effect, the Labour Relations Board has put itself in the position of writing the law to reflect the interests of employers and government, and then they've gone on to sit in judgement of that same law.

Unions in this province appear before the Board every day.

But, given these revelations, how can we have any confidence that we will be treated fairly? How can we have any confidence that the Board will be fair and impartial? How can we have any confidence that the referee is not working for the other team?

These are deeply troubling questions. And honestly, until such a time that confidence can be restored in the true independence of the board, there will be a crisis in labour relations in this province.

With that in mind - and in an effort to restore the confidence in the LRB that is necessary to make the system work - the AFL has called for a public inquiry.

We don't want an internal investigation or a review that's conducted behind closed doors.

We want an independent body to look at these documents and the many others that are clearly out there, but haven't been released. We want someone who can call witnesses and subpoena evidence. In short, we want a thorough, public investigation. And we want changes to make sure something like this never happens again.

This is a stain on our labour relations system in Alberta. The good news is that the problem is now out in the open. Now all that's need is the political will to deal with it and restore confidence in the system.


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