On October 28, 2019 the Alberta government introduced two bills (Bills 20 and 21) which propose several legislative changes that will impact post-secondary institutions in the Province, as well as their students. The legislation has various aspects worth considering, and we have summarized below some of the key changes to various legislation that the Bills have created which we think will be particularly relevant to post-secondary institutions throughout Alberta.

Post-secondary Learning Act - Amended

Bill 21 changes the Post-secondary Learning Act to suspend the current tuition freeze for the next three academic years (see sections 61(3.1) and 61.01). Post-secondary institutions can increase tuition fees to be paid by domestic students for these years in accordance with any restrictions on increasing tuition fees set out in the regulations. The Tuition and Fees Regulation restricts annual tuition increases to 10 percent per individual program.

Student Financial Assistance Act - Amended

Bill 21 proposes to increase student loan interest by one per cent. It adds to section 18 of the Student Financial Assistance Act a provision stating that the interest rate prescribed for a student loan under regulations will apply notwithstanding the terms and conditions of an agreement under which the loan was made pursuant to s. 10 of the Act.

Public Sector Employers Act - New

Bill 21 introduces the Public Sector Employers Act, which affects collective bargaining for several types of “employers”. Insofar as post-secondary institutions are concerned, it affects any institution that forms part of the publicly funded post-secondary system other than an independent academic institution within under the Post-secondary Learning Act.

The Act says that the Minister may issue directives that these employers must follow before, during, and after engaging in collective bargaining or a related process. The directives may be with respect to:

1. The term of a collective agreement an employer may propose or agree to.
2. Fiscal limits the employer has to operate within when engaging in collective bargaining.
3. Specifying information an employer has to provide to the Minister, including such information as:

1. compensation data and related information,
2. employment and labour market data and related information,
3. information for the purpose of monitoring the employer’s compliance with the Minister’s directives, and
4. any other information the Minister considers necessary respecting collective bargaining or a related process as set out in the directive.

The Act also provides that a Minister’s directives are confidential and may not be disclosed by the employer to any third party without the Minister’s prior consent. Likewise, information that the employer gives to the Minister pursuant to the directives is confidential and, subject to the regulations, the Minister may only disclose to another employer, an employee of a department or a member of Executive Council as the Minister considers necessary. This restriction on the employer sharing certain directives from the Minister at the bargaining table will be an interesting one to watch, as there is a chance it could be challenged by unions in light of certain other case law dealing with the propriety of withholding certain information in certain contexts of bargaining.

The Act will not apply to collective bargaining under the Public Education Collective Bargaining Act or a related process.

Labour Relations Code - Amended

Bill 21 changes the Labour Relations Code by reversing the ban on the use of replacement workers during a strike or lockout by essential services workers.

Alberta’s previous government introduced the ban on the use of replacement workers in essential services in 2016. The ban means that currently, if there is an essential services agreement in place which guarantees a minimum number of workers continue to work during a strike or lockout, the employer cannot hire temporary replacement workers to fill the spots of the striking or locked out workers.

Bill 21 adds section 95.201 to the Code, which says the employer shall elect to use either designated essential services workers or replacement workers to perform essential services during a strike or lockout. The employer must make that election within a reasonable time after the parties are required to begin negotiations for an essential services agreement.

If an employer decides to use the services of replacement workers, they have to apply to the Commissioner for an order granted under section 95.21(2), which may exempt the employer from having to begin negotiations for an essential services agreement. If instead the employer elects to use the services of designated essential services workers, they are to begin negotiations for an essential services agreement. Importantly, once the Commissioner has granted an order under section 95.21(2), the employer cannot change their election.

An employer is not required to make an election between the use of designated essential service workers and replacement workers if:

• Employees in the bargaining unit do not perform essential services; or
• The employer intends to use “other capable and qualified persons who are neither members of the bargaining unit nor replacement workers” to maintain essential services during a strike or lockout.

Alberta Personal Income Tax Act - Amended

Bill 20 eliminates education and tax credits for 2020 and later. It achieves this by repealing sections 15 and 16 of the Alberta Personal Income Tax Act, which provided that tax may be deducted by amounts determined by formulas factoring in annual tuition paid and time enrolled as a student. Credits earned prior to 2020 can still be used in accordance with the (now amended) section 17 of the Act, which sets out the formula for unused tuition and tax credits.

Additionally, Bill 20 changes section 17 of the Act to specify that if an individual was not resident in Alberta on the last day of the preceding tax year, that individual’s unused tuition and education credits at the end of that year is deemed $0.

Access to the Future Act and Post-secondary Learning Act - Amended

Bill 20 repeals the Access to the Future Act and dissolves the Access to the Future Fund. That particular Act had set out duties for the Minister to consult with post-secondary institutions for the purpose of enhancing accessibility and affordability of advanced education, and also established the Access to the Future Fund. The stated purpose of the Fund is “generally to support innovation and excellence that enhances and expands opportunities for Albertans to participate in accessible, affordable and high-quality advanced education opportunities.”

Under the Access to the Future Act, the Minister was required, in consultation with public post‑secondary institutions, to identify and establish enrolment targets and identify, evaluate and, where appropriate, implement plans, arrangements or processes that enhance the access to and affordability of advanced education. Bill 20 instead adds section 122.1 to the Post-secondary Learning Act, which says that the Minister may still do these things, but is not required to.

How these changes will affect any particular institution will obviously depend on various circumstances. Field Law acts as legal counsel for many post-secondary institutions throughout Alberta, and our team of lawyers specializing in this area would be happy to assist with any issues that institutions may have arising from this new legislation and strategies that may be important to address the changing legal landscape.