Labour relations expert weighs in on Alberta’s use of notwithstanding clause

Alberta teachers are headed back to school on Wednesday after legislation forcing them to do so was passed in the wee hours of Tuesday morning.

An Alberta labour relations expert says Alberta’s use of the notwithstanding clause to force teachers back to work marks one of the most aggressive labour moves in Canadian history.

Jason Foster, a professor of human resources and labour relations at Athabasca University, says the Back to School Act goes well beyond what is normally seen in back-to-work legislation.

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“It’s just how aggressive and punitive the legislation was,” he said. “They went much farther than they needed to, to be able to end this strike.”

Foster says governments in similar situations often impose binding arbitration to bring both sides to a resolution.

By comparison, he said Alberta’s decision to legislate an agreement, invoke the notwithstanding clause and threaten steep financial penalties represents “three or four big leaps farther than it needed to go.”

Under the law, teachers who refuse to return to class could face fines of $500 per day, while their union could be penalized $500,000 daily.

The clause shields the government from Canadian Charter of Rights and Freedom challenges under Section 2, which protects freedom of association — a key foundation for collective bargaining.

“It basically says that even if this legislation contravenes the Charter of Rights … the notwithstanding clause allows the government to violate those Charter rights, giving no recourse to the courts,” Foster explained.

He said Alberta’s move is unprecedented in provincial labour history and only the third such use in Canada.

The last occurred in 2022 when Ontario Premier Doug Ford invoked the clause against educational assistants — a decision his government repealed days later following intense backlash.

The only other instance was in Saskatchewan in 1986.

“If this bill stands, it will be the only example of using the notwithstanding clause for labour relations in living memory,” Foster said.

He warned the approach could damage morale among teachers and deter new educators from entering the profession.

“Teachers going back to work are going to be even more angry than they already were,” he said. “It’s going to be hard to get their enthusiasm and motivation back up.”

Foster also said the legislation sends an “ominous message” to all public-sector workers in Alberta about the balance of power in labour negotiations.

“It kind of makes a mockery of collective bargaining,” he said. “You can try and get a fair deal, but if the government doesn’t like it, they’ll just tell you what you’re going to get.”

He added that the broader implications extend beyond Alberta’s borders.

“This is not just significant for teachers or other Alberta public-sector workers,” Foster said. “If this stands, it creates a bit of a road map for other governments to do similar actions. This is concerning on a number of levels.”