Unions currently have enough political clout to withstand assault, legal scholar argues
After weeks of protest, Wisconsin’s Republican governor Scott Walker has officially taken away nearly all collective bargaining rights from the state’s 175,000 public employees. Passage of the bill led to mass protests on the weekend following the March 10 vote.
More than 100,000 people poured into the streets of Madison, the capital, to protest the law, but their frustration extended beyond the state’s border. Ohio recently proposed similar legislation that will be put to voters shortly, while 35 other U.S. states are also pushing for laws that would curtail unions.
The demise of collective bargaining rights south of the border is being watched closely here at home. Michael Lynk teaches law at the University of Western Ontario in London; he is also a respected authority on labour and constitutional law. He says the chance of similar legislation being passed in Canada is “unlikely but not something that can be definitively ruled out.”
Although it may be tempting for Canadian politicians to pursue the same path, Lynk says there are several reasons why it’s unlikely they will.
Most significantly, collective bargaining is a constitutionally protected right in Canada following a decision in 2007 by the Supreme Court of Canada. The court sided with several health unions challenging legislation rushed through in January 2002 in just three days by the new B.C. Liberal government.
The legislation effectively tore up union contracts, but the province argued it was the only way to deal with a healthcare cost crisis by giving hospitals and other employers more flexibility to do business — a similar argument to the one now being advanced by Walker and other U.S. state governors.
But there are key differences, Lynk notes. In Canada, labour laws are stronger and the rate of unionization is much higher — 29 per cent vs. 11 per cent. While union membership is waning here, it has not nearly plummeted as it has in the U.S.
“Because unionization is larger in Canada there’s less political appetite to make any serious legislative moves,” he says.
Canada also has a recent constitution compared with its neighbour to the south. Lynk describes the 1982 constitution as “fairly modern” because it has been informed by the influence of more progressive European countries, the U.N.’s Universal Declaration of Human Rights and a more liberal post-World War II era.
“Therefore, we have an explicit right to freedom of association,” he says. “In the U.S., it’s much vaguer.”
Lynk says another case currently before the Supreme Court of Canada — Fraser v. Ontario (Attorney General) — is also expected to underscore that right if it sides with agricultural workers who want to be allowed to organize.
All of this said, Lynk cautions against complacency on the part of unions. He points to the willingness of the Ontario government to consider declaring the Toronto Transit Commission an essential service, and the fact the Quebec government ordered its Crown attorneys back to work. Lynk suspects it’s only time before the SCC is asked to rule on the right to strike as well.
He says it’s also important to note that what offended the SCC in 2007 was not that the B.C. government introduced the legislation; rather, that it hadn’t consulted the unions.
“The question then is, if the government in B.C. had done a full round of consultations and still gone ahead with the legislation, would that have passed the constitutional scrutiny?” he asks.
“There has been no major labour law reform to strengthen trade unions for 15 years. Now the most conservative governments ever are in power in Canada. It may not be tomorrow or the next 10 years, but if unions continue to weaken at some point they’ll be unable to resist.”
