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Merged Super-Union of CAW & CEP Plans Creative Approach to Organizing Workers

Two of Canada’s largest unions, the CAW and CEP,  have been discussing a merger for some time.  Information about the merger can be found on the New Union Project website. Earlier this year, the two unions released a discussion paper setting out underlying themes that would guide the discussions and the future union.   One part of that document emphasized the need for unions to become more relevant to workers who do not presently work in unionized workplaces.  For example, the document said that the new union would define itself as a force fighting for all workers, not just its own membersand that it would “offer services and support to nonunion workers engaged in struggles and conflicts.”

Yesterday, the media was reporting some news on the progress of talks.  One news bite that emerged was the proposed new union’s intent to offer a form of associate membership to workers who are not employed at a workplace organized by the new union.  Here is a story from the Toronto Star by Tony Van Alphen, and a column by Thomas Walkom.  The Super Union is talking about offering a menu of benefits to people who join, including subsidized health care and legal advice.  Maybe child care too?  I’ve argued before that Canadian unions need to do more of this. So, I am fully supportive of the idea of associate union membership that would involve unions providing useful services to make life somewhat easier for any worker.

I also think that the law offers unions potential to aid workers in nonunion workplaces in other ways. Unions can try to make collective representations on behalf of any workers who join, regardless of whether their workplace is unionized.  As it stands now, the Supreme Court has found (in Dunmore and B.C. Health Services)  that the Charter of Rights and Freedoms guarantees workers: (1) a right to join unions; and (2) to make “collective representations” to their employers, a right which includes a requirement for the employer to consider the representations “in good faith” and possibly to “bargain in good faith”; and (3) a right of workers not be disciplined or dismissed for exercising these rights.  This is a form of Constitutional minority unionism (what I call, the “Thin Model of Freedom of Association”). One day soon, we may learn that this Constitutional model includes also some form of a right to strike.

So far, this model applies only to agricultural workers in Ontario (under the Agricultural Employees Protection Act), and to all government employees, since the Charter applies directly to them.  The Court has not yet declared that the Thin Model of FA also applies to other private sector employees.  Those workers still only have collective bargaining rights if a majority union is granted a license to represent them under Labour Relations legislation, usually following a heated contest in which the employer attempts to dissuade the employees from exercising their collective bargaining rights.

As I have argued before
, it no longer makes sense to say that private sector workers can only exercise their Constitutional associational rights if they are able to join a majority, certified union.   Although the Court has said that the Charter does not protect any particular model of collective bargaining, I suspect the Supreme Court intends that all workers must have the ability to access at least the Thin Model of freedom of association, even if some workers still have the potential to access thicker rights of associate available in general Wagner-style labour relations legislation (such as the duty to bargain in good faith and the right to strike).

The question is whether unions can make any use of the Thin Model of Freedom of Association in the private sector.

The plans of the Super Union to attract new members by offering useful services beyond formal collective bargaining and contract administration is a start.  Now imagine that the Super Union is able to attract 40% of Canadian Tire employees in Ontario by offering a menu of useful benefits.  The union doesn’t have majority support, so it cannot get legally certified under labour relations legislation. However, what if the Union approaches Canadian Tire head office with a demand to engage in collective representations on behalf of the 40 percent of employees who are its members?  Maybe the union wants CT to contribute some amount to the health benefit fund being accessed by CT employees.  CT would probably tell the union to go to hell, which will form part of the factual record demonstrating how private sector workers in the retail sector have no meaningful ability exercise their Charter rights.  CT’s response might also irritate CT employees, who might believe the union’s request was fair and reasonable.  If nothing else, this little dispute would demonstrate to the workers that it is the union providing the benefits, and the employer refusing to contribute.   Score one for the union’s image.

At this point, perhaps a new Charter challenge would be launched.  It might assert that the legal model requiring that retail workers join a ‘certified union’ in order to exercise their Charter rights ‘substantially interferes” in the ability of Canadian Tire employees to exercise the Thin Model of Freedom of Association guaranteed by the Charter.  Would that argument succeed?  Don’t know.  Are retail workers comparable to agricultural workers in terms of their inability to access collective bargaining under the Labour Relations Act?   Maybe. Certainly the retail industry has always had very low union density.  As far as I am aware, there are not presently any Canadian Tires unionized under the standard labour relations model.  Or Walmarts, Loews, Home Depots, Starbucks, bank branches, McDonalds’, and so on.  Also, if the Court takes seriously what has repeatedly said,  that Section 2(d) [freedom of association] must be interpreted in a manner consistent with international labour law, it may be sympathetic to the argument. ILO law requires that government’s ensure that workers have the ability to engage in collective bargaining, even when there is no majority union.

Of course, even if the Thin Model of Freedom of Association applies to all employees, it is unclear that this will make a huge difference in Canadian employee relations. It certainly hasn’t transformed the agricultural sector in Ontario.  Many people believe that absent a right to strike, a right to engage in collective representations is meaningless. Maybe.  But most workers in Canada don’t presently have a legal right to strike anyways, and likely won’t ever under the existing Labour Relations model requiring majority unions.  Nor is it clear that most workers want to strike, even if given the option.  The CAW and CEP should be credited with thinking outside of the box in order to make the labour movement more relevant to the 80 percent or so of private sector workers who are not represented by a union.

What do you think about the idea of unions offering associate memberships to any worker as a way of providing useful benefits outside of collective bargaining?

Do you think the right to make “collective representations” to employers on behalf of a minority of workers, without a right to strike, is of any potential benefit to workers or unions?



One Response to Merged Super-Union of CAW & CEP Plans Creative Approach to Organizing Workers

  1. David Pouliot Reply

    July 4, 2012 at 10:45 am

    The trade union merger trend has finally come to Canada as we see the CAW and CEP proposal for a new merged union almost a done deal. This phenomenon has been underway in Europe and Australia since the 1990′s and it is informative to look at the causes and results of the merger trend in both of these countries. The driving force behind the wave of trade union mergers is two-fold. The first reason has to do with the sharp decrease in trade union membership. The second reason for the trade union mergers lies in the ongoing structural changes in the economy, which break down the traditional sectoral demarcations and thereby bring into question the old principle of industrial trade unionism. The post-war trade union concept of having only one union per company can no longer persist.

    The trade union mergers are more a defensive reaction of the unions to a drastic fall in membership and to fundamental changes in the economy. In concentrating their resources and creating “synergy effects”, the unions hope to gain a new strength. In the Australian context a large scale survey of union delegates in 1995 asked, among other things, what the impact of amalgamation had been on union performance. Overwhelmingly, workplace delegates reported nothing much had changed. Where there had been changes in union performance it had often dropped as much as it had improved.

    On the ultimate indicator, union membership dropped by 16 percentage points over the 1990s. These data point to the first lesson arising from the Australian union amalgamation experience to date: on their own, amalgamations will not solve the problem of union decline.

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