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Alberta ponders 'options' as independent arbitrator overturns firing of jail guards who took part in illegal strike

An independent arbitrator has overturned the firing of four Correctional Officers who took part in the illegal April 2013 strike that the Redford Government claims prompted its unconstitutional legislative effort to all but ban collective bargaining by their union.

In a bare-bones note announcing the decision sent to the parties late Thursday, respected labour arbitrator Andy Sims replaced the firings with three-month unpaid suspensions for three of the COs and a one-month unpaid suspension for the fourth.

While AUPE rightly hailed Sims' decision as a victory, the ruling is not necessarily the final vindication for the union in the matter of the government's treatment of its members in the hours after former deputy premier Thomas Lukaszuk and AUPE President Guy Smith reached an agreement in an Edmonton restaurant to end the strike.

Another shoe will drop if the union is able to prove Lukaszuk promised an amnesty for the strikers and then broke his word -- meaning it’s possible the four guards might not even face suspensions without pay.

AUPE intends to use statements and testimony by Lukaszuk to prove there was an amnesty agreement in a second complaint it plans to bring before the Alberta Labour Relations Board, which is also expected to end in an arbitrated settlement.

It's hard to imagine the politician could avoid testifying by pleading Parliamentary privilege, as members of Premier Alison Redford's cabinet did when AUPE tried to prove the government was not bargaining in good faith because it had already drafted Bill 46, legislation that imposes a contract that includes a two-year wage freeze on the union. The Public Service Salary Restraint Act became law on Dec. 11.

After all, the main subject the politician would be quizzed about is his meeting in a restaurant with Smith. But if he manages to avoid testimony, presumably the arbitrator will have no choice but to decide the case on what Smith says under oath.

Smith says his agreement with Lukaszuk included an amnesty for all guards involved in the illegal strike -- which began on April 26 after union members complained of unsafe working conditions in the then-new Edmonton Remand Centre and which quickly spread to jails throughout the province.

No one else was at the meeting, however, and only a day after the deal the government made moves to fire the four Correctional Officers.

After the fact, government spokespeople have worked hard to split hairs to justify the firing. As Deputy Premier Dave Hancock said Friday at an informal news conference in the Legislature rotunda, seemingly acknowledging there was an amnesty: "The action of firing those employees was taken after it was believed that their individual actions, not overall strike actions, but their individual actions were not in keeping with their job responsibilities."

Neither AUPE nor the government has yet seen Thursday's full ruling by Sims, but given the arbitrator's reputation, readers may assume it will be tightly reasoned and difficult to argue against, notwithstanding the government's bluster Friday about how it will consider options for weaseling out of the ruling.

Movers and shakers in the Redford Government, especially Lukaszuk, who is now labour minister, are bound to be furious at the ruling -- all the more so because Sims is so highly regarded by professionals in the law and the high-stakes field of labour relations.

The government's fierce legislative attack on AUPE, not to mention other public-sector unions that had no involvement in the June strike, is widely perceived among public sector unions as the government's vengeance for the political embarrassment caused by the guards' actions.

If a government appeal is launched, since Alberta's judiciary remains independent and impartial, the courts might very well uphold the arbitration ruling after more tax dollars had been poured into the government's ongoing attack on AUPE.

Whether or not AUPE succeeds with its argument the deal that ended the strike was broken by the firing of four officers, last week's development casts some light why the government used Bill 46 to strip AUPE of the right to arbitration in contract bargaining when an impasse has been reached.

The arbitration provision was put into Alberta labour law by the Lougheed Government in 1977 as a reflection of natural justice when it eliminated the right of civil servants to strike to resolve a labour dispute. If the work of civil servants was too important to allow them to strike, Premier Peter Lougheed's government reasoned, they had the natural right to another fair mechanism to settle disputes.

By contrast, the Redford Government has toughened the ban on strikes to the point even a refusal of unsafe work by two or more public employees could be defined as an "illegal strike" that could result in fines to their union of a million dollars a day.

At the same time, the government removed AUPE's right to third-party arbitration as well.

Henceforth, in other words, the government, which is also the employer, has the right to dictate terms in what it risibly still calls "negotiations" with the union. It's very difficult not to see this as contempt for fairness and natural justice by the Redford Government.

So if you've ever wondered why the Redford Government has such a hate for fair and impartial arbitration, now you know the answer: It's because it's fair and impartial.

This post also appears on David Climenhaga's blog: Alberta Diary.

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