Interest Arbitration, Legislated Settlements and the Notwithstanding Clause—
When Bargaining and Strikes Reach an Impasse
When collective bargaining between teachers and their employer or the Teachers’ Employer
Bargaining Association (TEBA) reaches an impasse, the Alberta Labour Relations Code specifies
several lawful options: mediation, a strike or lockout or, in certain cases, interest arbitration.
There are three potential ways those terms might ultimately be determined. Each of these options are
explained in more detail below:
- Voluntary Interest Arbitration—chosen by both parties under the Labour Relations Code.
- Legislative Interest Arbitration—imposed through government legislation.
- Legislated Settlement—where the government directly enacts the terms of a new collective
agreement in law.
Voluntary Interest Arbitration
Under section 112(1)(b) of the Labour Relations Code, the employer and the union may mutually
agree to submit unresolved bargaining issues to arbitration instead of proceeding to a strike or
lockout.
In this process
- both parties must consent to arbitration and define what issues will be decided;
- a three-person arbitration board (one nominee from each side and a neutral chair) hears
evidence and issues a binding decision that forms the new collective agreement; and - the award has the same legal force as a negotiated settlement.
Voluntary interest arbitration allows both sides to avoid a work stoppage while maintaining shared
control over the process.
Legislative Interest Arbitration
Legislative interest arbitration occurs when the Government of Alberta passes a law to end or
prevent a strike and refers all unresolved issues to an arbitrator or arbitration board. This approach:
- does not require the consent of the union or employer;
- suspends or removes the right to strike; and
- directs the arbitrator’s appointment, timelines, and sometimes the factors to be considered.
While the resulting arbitration decision is binding, the government legislation dictates the scope of
issues and independence of the process. This type of intervention has been utilized across Canada in
sectors such as education, health care and transportation.
Legislated Settlement
In some cases, instead of referring matters to arbitration, the government may pass legislation that
directly enacts the terms of a collective agreement.
This means that
- the legislation specifies the wage rates, duration and key conditions of employment;
- there is no further bargaining or arbitration process; and
- the terms take effect as law, binding both the union and the employer.
A legislated settlement immediately ends any ongoing strike or lockout and removes the parties’
ability to influence the outcome. Future bargaining resumes only after the term of the legislated
agreement expires.
The Notwithstanding Clause
The back-to-work legislation may include the notwithstanding clause [section 33 of the Canadian
Charter of Rights and Freedoms (Charter)]. Based on this clause, a provincial legislature can
temporarily set aside certain Charter rights, including section 2(d), which protects freedom of
association and collective bargaining, for up to five years.
If Alberta were to enact back-to-work or settlement legislation that included a notwithstanding
clause:
- Any Charter-based legal challenge to the loss of the right to strike or to bargain collectively
would be barred while the clause is in effect; - The legislation—whether referring matters to arbitration or directly setting the terms—would
remain valid and enforceable; and - The ATA could still raise statutory or procedural challenges, but constitutional arguments
would not be available during that period.
In practical terms, invoking the notwithstanding clause would temporarily suspend teachers’ ability
to contest the fairness or reasonableness of the legislation under the Charter.
Key Differences at a Glance
| Feature | Voluntary Interest Arbitration | Legislative Interest Arbitration | Legislated Settlement | With Notwithstanding Clause |
|---|---|---|---|---|
| How it is initiated | By mutual agreement | By government legislation | By government legislation | May apply to either legislative option |
| Consent required | Yes | No | No | No |
| Who sets the terms | Arbitration board agreed to by both sides | Arbitration board appointed under government legislation | Government directly through statute | Government legislation protected from Charter challenge |
| Right to strike | Given up voluntarily | Suspended by statute | Terminated by statute | Terminated; Charter challenge barred |
| Legal recourse | Normal grievance and Charter rights apply | May be challenged on Charter grounds | May be challenged on Charter grounds | Charter challenge not available while section 33 is active |
| Source of authority | Labour Relations Code | Special legislation | Special legislation | Special legislation invoking Section 33 of the Charter |
What About Work-To-Rule? Is It an Option if We Are Legislated Back?
If teachers are legislated back to work, there is no legal way to implement work-to-rule, as this is a
form of strike. Any work-to-rule or withdrawal of previously agreed to voluntary service could be
deemed an illegal strike and subject to associated fines and penalties as per the Alberta Labour
Relations Code.
Work-to-rule is a type of legal job action where employees perform only the duties that are
expressly required by their collective agreement, job description or applicable legislation—
nothing more and nothing less.
Teachers following work-to-rule fully comply with all contractual and statutory obligations but
withdraw voluntary service or discretionary work that they normally provide beyond what is
required.
This action is designed to demonstrate the amount of unpaid or unrecognized labour teachers
routinely contribute, while keeping schools operating safely and legally.
Why Knowing This Information Matters
Clarifying these distinctions helps Alberta teachers understand what could follow if government
action ends a strike or prevents one from occurring.
- Voluntary arbitration respects mutual consent.
- Legislative arbitration compels arbitration under government terms.
- A legislated settlement bypasses arbitration altogether and sets contract terms directly in law.
- If the notwithstanding clause is invoked, any Charter-based legal challenges to those measures
would be unavailable while the clause is in force.
Each approach affects teachers’ ability to influence outcomes and to seek legal remedies in different
ways.
worth knowing
Under Alberta’s Labour Relations Code, the union and employer (and the Teachers’ Employer
Bargaining Association) can agree to resolve bargaining disputes through voluntary interest
arbitration, a binding process that both parties choose.
If the government intervenes with back-to-work or settlement legislation, it may either
- require legislative interest arbitration, where an arbitrator sets the terms; or
- impose a legislated settlement, where the law itself specifies the agreement’s terms.
If the legislation includes the notwithstanding clause, Charter-based challenges to the process or
outcome would be temporarily suspended, limiting available legal remedies to those under statute
or administrative law.
Work-to-rule after back-to-work legislation will be deemed as an illegal strike and subject to
associated fines and penalties as per the Alberta Labour Relations Code.
Questions? Contact Teacher Employment Services at 1-800-232-7208.