ALF V1

Workplace Privacy (April 2009)

Policy paper adopted at AFL 46th Constitutional Convention, April 23-26, 2009

EDMONTON-In ongoing revelations in the scandal regarding Bill 27 and the Labour Relations Board (LRB), the Alberta Federation of Labour (AFL) released documents today contradicting public statements made by Human Resources and Employment (HRE) and a lawyer with McLennan Ross regarding emails between an LRB Vice-Chair and the government about the drafting of Bill 27.

A letter from the FOIP Coordinator for HRE, released by the AFL today, suggests the department had hired no outside lawyer to offer legal services on Bill 27. This directly contradicts public statements made by the department and the lawyer in question.

"If the lawyer copied in the emails about Bill 27 was not working for HRE, who was he working for?" asks AFL President Gil McGowan.

Documents made public earlier this month show the Vice-Chair of the LRB emailing officials at HRE with a draft of Bill 27 regulations. In the email, a lawyer with McLennan Ross, Damon Bailey, was copied. McLennan Ross is a prominent employer-side labour law firm. At the time, the AFL raised alarm bells about this, saying it proved employers had played an active role in developing Bill 27, an openly anti-union labour law. But both HRE and Damon Bailey stated publicly that Bailey was working for HRE , not health care employers, at the time.

However, a letter from the FOIP Coordinator for HRE contradicts these statements. In January, 2005, the AFL's lawyer made a FOIP request for records "documenting the engagement of any outside (non-government) legal counsel and/or law firm by the Department, the Minister or Minister's staff" regarding Bill 27. In March, the FOIP Coordinator responded by saying: "I regret to inform you that a thorough search by Human Resources and Employment has failed to retrieve any records responsive to your request."

"We asked if HRE hired any outside lawyers to help with Bill 27 and were told there were no records," says McGowan. "No records usually suggests no contract. There would be an invoice or piece of paper of some kind."

In a letter to the editor published in the Edmonton Journal on December 7, Damon Bailey says: "My only involvement with Bill 27 was to provide technical assistance and expertise to the department of human resources and employment."

"If Bailey was working for HRE, then the Department deliberately withheld documents from a FOIP request," McGowan inquires. "If there were no documents, then Bailey was not working for the department, and this raises the question why he was copied on sensitive emails."

The AFL intends to ask the Privacy Commissioner to investigate this contradiction, and continues to press for all the documents related to Bill 27 to be released. "The only way to clear the air at the LRB is to let everyone see the documents and find out what happened." McGowan concludes.

Copies of the documents released today are available here. Look under the media release section.

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For more information contact:
Gil McGowan, AFL President at 780.915-4599 (cell)  or  780.483-3021 (wk)

[Edmonton] The Alberta Federation of Labour has won the first round in its efforts to force the Alberta Labour Relations Board to release all pertinent documents surrounding Board involvement in writing labour regulations.

The Court of Queen's Bench decided late yesterday that the AFL had the right to retain the Board documents forwarded to them by the Office of the Information and Privacy Commission. These documents, which the Board tried to suppress, strongly support the AFL's argument that the Board acted improperly during the drafting and implementation of Bill 27 - one of the worst pieces of labour legislation in Alberta's history.

"This is a clear victory for common sense," says AFL President Gil McGowan. "We had received those documents properly and distributed them to our members. The documents had been reprinted in the media. Trying to suppress them at this point was entirely unreasonable."

"We are now calling upon the Board to release all of the other hundreds of documents relating to Bill 27 which they are still trying to suppress," says McGowan. "The Board keeps claiming it has done nothing wrong - but why then are they still trying to withhold information?"

McGowan insists that the public has a right to know all of the information about actions taken by the Board around Bill 27. "Many thousands of Albertans were hurt by Bill 27", says McGowan. "If the Board that is supposed to be the impartial referee acted wrongly, Albertans not only need to know - they need to see the wrongs redressed."

The AFL has called upon the Premier to institute a full public inquiry into the matter. "We have asked for a full public inquiry headed by an expert from out-of-province with full powers to subpoena documents and compel witness" says McGowan. "It is the only way we can be sure justice will be done."

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For more information contact:
Gil McGowan, AFL President at 780.915-4599 (cell)  or  780.483-3021 (wk)

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.

EDMONTON-The AFL responded today to comments from Clint Dunford regarding the released emails implicating key Labour Relations Board (LRB) in a scandal regarding the drafting of Bill 27.

"Either Minister Dunford doesn't get it, or he is continuing a game of whitewash," says AFL President Gil McGowan.

Late last week, the AFL received three documents as part of a privacy commissioner inquiry that prove that one of the LRB's Vice-Chairs, with the knowledge of the Chair and other Vice-Chair, prepared initial drafts of the controversial Bill 27 - which ripped up collective agreements and forced the merger of hundreds of bargaining units. These emails indicate that the LRB breached its role as the independent, neutral "court" for labour relations.

Dunford downplayed the emails yesterday  - although admitting he had not seen them - saying the LRB was just providing "technical advice".

"Dunford's comments are absurd," retorts McGowan. "Anyone reading those emails can tell you more than 'technical advice' was being offered - Vice-Chair Les Wallace wrote the initial drafts of the regulations."

"The legislative counsel for Alberta Justice admitted he did not 'deviate' from Wallace's 'instructions' - this is far more than simple technical advice."

McGowan suggests Dunford is whitewashing the scandal. He notes that on September 3, 2003, Dunford was quoted in the Edmonton Sun as saying the LRB "weren't involved in the drafting of the legislation" (page 21).

"The emails prove Dunford was misleading the public in 2003, and I contend he continues to do so today."

McGowan also points out that even the offering of technical advice is a breach of the LRB's mandate. "They are the impartial court for labour relations - do we ask judges how to craft criminal law? No, because it is inappropriate to ask the person interpreting the law to also help create it. That is what happened here."

"Clearly Dunford doesn't understand the role of the LRB. He doesn't get it."

"The Premier doesn't get it either", adds McGowan. "His comments in the legislature yesterday equating a court hearing and a public inquiry are nonsense. The two processes are vastly different - and he knows it. Our court appeal is narrow and technical. What's needed is a broad review of the Board's impartiality that can only be accomplished with a public inquiry."

"This scandal has rocked the labour movement - we have long had doubts about the neutrality of the LRB, but these revelations prove to us that something is wrong at the Board," McGowan concludes.

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For more information contact:
Gil McGowan, AFL President at 780.915-4599 (cell)  or  780.483-3021 (wk)