There’s a new debate taking place about unions and worker choice in Canada and the United States. It’s one that would have been hard to imagine even a few years ago.
In a surprising move, Michigan governor Rick Snyder signed two “right-to-work” bills into law on Dec. 11. That made Michigan the 24th state in the U.S. with such legislation.
The fact it happened in what was viewed as a bastion of organized labour and the birthplace of the United Auto Workers was a shock. But now that a right-to-work Michigan is a reality, many unions, employers and governments in the U.S. — as well as Canada — are asking “Who’s next?”
The debate picked up on this side of the border just one day later, on Dec. 12, when the House of Commons passed Bill C-377, an Act to Amend the Income Tax Act (requirements for labour organizations). The bill’s stated aim is to increase transparency and accountability for labour unions. Under the legislation, every labour union in Canada will be required to file a standard set of financial statements each year with the minister of finance. Details from those statements will be posted on a public website.
Although in opposition, the Ontario Progressive Conservative party dedicated a 2012 white paper to “flexible labour markets.” Proposals included worker choice, union transparency and secret ballots in all certification votes in Ontario. Another proposal is eliminating sole sourcing of contracts in the province’s municipal and broader public sectors.
Canada and the U.S. are, of course, substantially different environments when it comes to labour relations. But what do these developments mean for employment and labour law in Canada as we enter a new year?
Right-to-work in Canada?
The biggest question is: Could Michigan’s kind of right-to-work legislation become law in Ontario? The short answer is: Not likely. It’s true Indiana became a right-to-work state in early 2012. And Wisconsin, another Michigan neighbour, enacted a budget repair bill in 2011 that repealed most collective bargaining power from public sector employees. (Wisconsin did not become a right-to-work state, however). But all of this is unlikely to flow into Canada’s largest manufacturing province.
This is in large part because in Canada, collective bargaining is constitutionally protected — in a limited fashion. The Supreme Court of Canada’s 2011 decision in Ontario (Attorney General) v. Fraser affirmed the freedom of association guarantee in the Canadian Charter of Rights and Freedoms does not go so far as to constitutionalize the fundamental protections provided by current Canadian labour relations legislation. This clarified the reasons given in the court’s 2007 ruling in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, which recognized that some constitutional protection was afforded to collective bargaining through freedom of association in the charter.
Lavigne, worker choice and dues
A 1991 Supreme Court of Canada decision that could affect changes around worker choice and paying union dues in Canada is Lavigne v. Ontario Public Services Employees Union. It involved Francis Lavigne, a community college teacher who was required to pay dues to the Ontario Public Service Employees Union (OPSEU) under a mandatory check‑off clause. Such clauses, which incorporate the Rand formula — where employers automatically deduct union dues from wages for every employee in a bargaining unit — are permitted by the Colleges Collective Bargaining Act.
Lavigne objected to some of the expenditures made by OPSEU, such as contributions to the New Democratic Party (NDP) and disarmament campaigns, and challenged his obligation to pay union dues. The trial judge decided the Colleges Collective Bargaining Act and provisions of the collective agreement were of no force and effect as they compelled Lavigne to pay dues to the union for purposes not directly related to collective bargaining. The judge found the Canadian Charter of Rights and Freedoms applied and Lavigne’s freedom of association had been infringed.
The Ontario Court of Appeal reversed this judgment. It found the use of the dues by the union was a private activity by a private organization, and beyond the reach of the charter. The court also found there was no infringement of Lavigne’s freedom of association, since he remained free to associate with others and oppose the union. Lavigne appealed to the Supreme Court of Canada, which dismissed the appeal.
A tug of war
So if right-to-work laws are unlikely to appear in Canada soon, and the Supreme Court of Canada has decided on worker choice and paying union dues, does the new tenor of debate on these topics matter? Yes, it certainly does.
This is new ground in Canada — addressing worker choice and union transparency with such seriousness. For many workers, the choice to not have to support a union as a condition of employment and the choice to know how union dues are being spent do not exist. Shifting this ground (as Bill C-377 may) represents a movement away from the more traditional approach that emphasized workplace majoritarianism. And this tug of war between individual choice and majoritarianism should continue in earnest.
Which way the Rand formula is pulled could go a long way in establishing the new ground of worker choice in Canada. The check-off formula is now typically available on request by unions in Canada in contract negotiations, but is not set in stone. It could possibly change into something that has to be bargained for — instead of simply being given when asked. Or it could be limited to only funding collective bargaining endeavours and not, for example, political activities. With time, there may be a reconsideration of whether courts or elected legislatures are the best ones to deal with these kinds of questions. It should be a very interesting journey.
Richard Charney is law firm Norton Rose’s Toronto-based global leader for employment and labour. He can be reached at (416) 216-1867, firstname.lastname@example.org or visit www.nortonrose.com for more information.