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Are Ontario Laws on Union Dues and Membership ‘Undemocratic’?

Originally published April 3, 2013

The Ontario Conservative Party has promised, if elected, to do away with what they keep calling “forced unionism”. We don’t know the details of the law, but  they have inferred they’d pass a law that bans a collective agreement from including a clause requiring employees covered by the agreement to pay union dues or to become a union member.  Collective agreements (outside of construction) that require union membership are relatively uncommon.  Union dues deduction clauses, on the other hand, are the norm.  They require the employer to deduct union dues from all of the bargaining unit employees, in the same way that employers deduct all sorts of other amounts, such as fees towards health, dental, and pension plans. The employer then forwards the dues to the union. The Conservatives want to cut off that flow of money to their political opponent, the labour movement.

The idea of weakening unions by cutting off their revenue flow is as old as collective bargaining itself, despite the Conservative’s claim that they want to ‘modernize’ labour law. To be historically accurate, their ideas owe more to the 1920s than any progressive vision of the future.   Banning union dues clauses is an idea taken from the deep southern U.S. Republican states of the 1930s and ’40s where, to put it mildly, unions weren’t (and still aren’t) welcomed.

Let’s take a quick cross-Canada look at the laws that regulate union dues and union membership.  Here is a chart describing the laws, in case you are interested.  The summary deals only with the non-construction sector, which is most of the economy and the real target of the Tories.  The construction sector has different rules and models and needs to be considered separately.

This is what it shows:

In Ontario, there is no statutory law requiring union dues be paid, and no law requiring employees to become union members. Whether either requirement exists depends on collective bargaining and how a majority of employees vote.  A collective agreement can only come into existence if it is approved in a mandatory secret ballot ratification vote.  This means that a mandatory dues or membership clause can only exist because it was approved in a majority vote of employees affected.  This is also true of every other term in the collective agreement, except a few terms that are specifically required to be included in every collective agreement, like a no strike clause and a mandatory arbitration clause.

The only thing that is unique about union dues clauses is that the law presently says that it is up to the union and the employees to decide if they want a dues checkoff clause.  The employer cannot resist if the union proposes the inclusion of a union dues clause in the collective agreement.  This provision (Section 47) was introduced by a Conservative Government in the 1980s tired of labour disputes over union dues clauses.  Hence, the Tory claim that the laws they want to change “date from the 1940s” is not accurate.  There is no law in Ontario on union dues that dates from the 1940s, though I guess you could claim that the idea that employees protected by a collective agreement should pay their fair share of the dues that go towards funding the union’s services was legitimized in Justice Rand’s 1946 interest arbitration award in the famous Ford decision.

So, for example, imagine a union bargains a health or pension plan with the employer that requires employees to pay dues, premiums, or a fee towards the cost of those plans.  This is very common, and one of the big benefits of being unionized–unionized employees have far better health and pension plans in Canada than nonunion employees. The requirement to pay a fee towards the cost of a health and pension plan goes into the collective agreement.  The law requires that agreement to be put to a majority vote of employees, and if the vote is in favour of the agreement,  then all employees must pay the health and pension plan contributions, regardless of whether they supported the union, the collective agreement, the health or pension plan, or the requirement to contribute.  The employer will deduct these dues from the employees’ pay.  This is the exact same situation with the requirement to pay union dues.

labourlawTherefore, we can only say that employees are ‘forced’ to pay union dues if by that we mean subjecting people to a rule approved by a majority is a form of force or coercion.  If that is the case, then not only is our entire model of labour law illegitimate, then so too is our entire democratic process.  Both systems are based on the idea that majoritism is an appropriate model for making decisions that affect collectives.  If it is improper for a majority of employees to approve a rule requiring all employees to pay union dues [or health or pension premiums] for the services and benefits they all receive from the union, then so too is it improper for Canadians to be forced to pay taxes to a government they didn’t vote for, or to obey a rule with which they disagree passed by an elected government.

Indeed, collective agreements are more democratic than political elections when there is higher employee turnout than is the case in our sad political system these days.  The Harper government won a majority in the last election even though only about 24% of Canadians actually voted for them.  The Ontario Liberals won the last Ontario election by persuading only 18% of Ontarians to vote for them.  Provided people have the opportunity to vote on issues that affect them, we accept as democratic the outcomes of ballots.

Here’s a quick overview of the rest of the country.

The Federal jurisdiction and Newfoundland & Labrador have a similar model to Ontario, with the exception that there is no legal requirement for a collective agreement to be ratified by a majority of employees.  If the union requests a union dues clause, then the employer cannot fight about this.  Whether or not there is a mandatory union membership clause is up to the parties in bargaining.  In theory, a union could bargain a mandatory dues and membership clause without subjecting it to a ratification vote.  In practice, most unions put collective agreements to an employee vote even when the law does not formally require it.

In Alberta, British Columbia, New Brunswick, and Nova Scotia,  mandatory union dues and mandatory membership clauses are permitted to be bargained, but they are not required by law.  However, dues can only be deducted from an employee’s pay cheque if the employee signs an authorization requiring this.  Once an authorization is submitted to the employer, the employer must abide by it and deduct the dues.

In Prince Edward Island, a collective agreement may include a mandatory dues provision, in which case the employer must deduct the dues and submit them to the union.  However, if there is no mandatory dues provision in the agreement, then dues can only be deducted by the employer if the employee signs an authorization ordering the employer to do this.

The strongest union security provisions are found in Saskatchewan, Quebec, and Manitoba.  In Saskatchewan,  if a union so requests, the collective agreement must include both a mandatory union dues and mandatory union membership clause.  In Manitoba and Quebec, union dues are mandatory by virtue of the statute.  Thus, these two provinces are the  only jurisdictions in Canada that actually have ‘forced union dues’, in the sense that the law demands it.  Mandatory membership is permissible in both provinces, as it is every where else in Canada.  However, as in Ontario, no collective agreement can come into effect in Manitoba unless it has been approved by a majority of employees in a secret ballot.  Therefore, in Manitoba, like in Ontario, if a majority of employees do not want to pay union dues, they can refuse to ratify a collective agreement and decertify the union.

Issues for Discussion

In Canadian labour law, employees can only get access to collective bargaining if a majority of their coworkers also select this option.  This ‘majority’ requirement is unusual by international standards.  Employers (and even Conservatives) like this majority requirement, because it makes unionization more difficult.  That is why Conservatives and employers usually support employee strike votes, certification votes, and collective agreement ratification votes.  All are based on the idea that a majority of employees should be able to make rules that apply to all of the employees.  Yet Conservatives do not think that the majority should be able to approve a rule requiring all employees to pay an equal share towards the cost of bargaining and administration of a collective agreement.

One option is do away with the majoritism principle altogether.  Anyone who wants collective bargaining and union representation can have it.  That would deal with any concerns about ‘forcing’ employees to pay union dues.  The employer has to bargain with those employees who choose to be in a union, but other employees can continue to remain nonunion.  That is the way most of Europe works.

Should Canadian politicians move towards this model of ‘minority unionism”?

Do you think employers would support doing away with the majority requirement in Canadian labour law altogether?  Why or why not?

Socialize

21 Responses to Are Ontario Laws on Union Dues and Membership ‘Undemocratic’?

  1. Ron Lebi Reply

    April 3, 2013 at 3:13 pm

    Your description of the law in Ontario should probably make allowance for the different rules that pertain in the construction industry — particularly in the ICI sector: (i) a trade union can be certified based on its card count (without a vote), (ii) upon certification, the employer becomes immediately bound to the province-wide agreement, and (iii) ratification of collective agreements is not required under the statute. As you know, most collective agreements in the construction industry require not only check-off but union membership.

    • admin Reply

      April 3, 2013 at 5:15 pm

      Thanks Ron, you are right, I should make clear that I’m dealing with non-construction only. Since the Tory argument is that abolishing ‘forced unionism” is necessary to create jobs in Ontario, I am assuming they are not talking about the construction sector. It must be obvious even to Tories that no new constructions jobs would be created as a result laws on union security, since construction is not a mobile industry. The claim is that manufacturing jobs will come to Ontario if the union security laws are changed. But I will revise the post to note your point. Best

  2. Fernando Reis Reply

    April 3, 2013 at 9:37 pm

    I remember a well known employment lawyer debating with Buzz Hargrove back in 1995 when the Harris government was about to do away with card check certification. The lawyer’s argument was “whose afraid of a democratic vote?” Well, apparently the Conservatives (and to some extent the Liberals). The idea of abolishing the card check was to make it more difficult for workers to organize (it had nothing to do with democracy)and while the change in the law back in 1995 had this effect, it appears the Conservatives are not satisfied with “a democratic vote”, so the response now is a Right To Work (RTW)(for less) law. The Harris conservatives also forced unions to hold separate ratification votes and strike votes for first contracts. Apparently, it wasn’t “democratic” to give workers a choice of either voting in favour of a collective agreeement or rejecting it and going on strike. While I agree that no one should be allowed to “free ride”, isn’t minority unionism similar to RTW except that the union has no obligation to represent workers who are not members? Moreover, doesn’t the “free ride” continue because if a union negotiates terms and conditions of employment, will the employer not have to match the union deal for all other employees who are not members? If the employer fails to do this, the employer may create a retention and recruitment problem. These employees will still get the benefit of the work of the union but will not pay dues. The only comfort for the union is that the union would never have to face an application alleging unfair representation from non-members. I don’t know; seems like a brave new world to a trade unionist.

    • Slantendicular Reply

      April 4, 2013 at 5:23 am

      I’m not sure how to reconcile your point that minority unionism will allow for free-riders with my impression that unionization rates are higher in Europe, even with the minority unionism model.

      • admin Reply

        April 4, 2013 at 3:56 pm

        Slantendicular, minority unionism allows for free riders if employers give nonunion workers whatever unionized workers receive. One challenge for law in the North American context would be whether employers should be regulated so that they cannot effectively punish workers who join unions by giving preferential terms to workers who do not.

  3. Sheila Wilkinson Reply

    April 4, 2013 at 4:06 pm

    These ideas are actually in accord with the freedom of association principles espoused by the ILO. North America is an outlier in its continued use of majority unionism legislation. Why not simply allow all employees the choice of joining or not joining a union? If unions campaign and operate effectively it actually presnts an opportunity for them to expand their coverage.

    • Fernando Reis Reply

      April 5, 2013 at 1:07 am

      The idea is attractive for a number of reasons both for trade unions and meeting the needs of those workers experiencing a representation gap. However, I see a tension developing both from the right and the left, so to speak. The right will probably not acknowledge that there is a representation gap and that individual employees are in the best position to represent their neeeds without requiring a third (union) party. Furthermore, let us not forget one of the objectives of the Wagner model, namely to promote labour peace. The right will say that, compared with the past, we have achieved relative labour peace (of course the Harper government and Ontario Liberals have contributed to the labour detente through legislation and imposed collective agreements). The left’s problem will be with reconciling the work unions do with the fact that individual employees who are not members of the union will “piggy back” on the work of the union. Interestingly, I heard today that the Faser Institute released a report showing that public sector workers earn an average of 12% more the workers in the private sector performing comparable jobs. The solution for the Fraser Institute is not to increase the wages of the private sector, but to reduce the wages of the public sector. Seems like this may be evidence of a representation gap in the private sector.

  4. lisa Reply

    April 9, 2013 at 8:29 pm

    hello, we are in the process of negotiating a contract, we do not have anyone to ratify the contract (they quit) so were left with a big mess, the union said they will sign off on the contract themselves, can they do that? and if and when we hire someone they also said if the new employee doesnt pay union dues they will fire them can they do that?

  5. susan Reply

    June 22, 2014 at 1:47 am

    I have a question I’m hoping someone can answer. My daughter works and is considered a ‘contract’ employee. She has no benefits and has to ‘re-apply’ for her job every year. Why is she forced to pay union dues?

    • Doorey Reply

      June 25, 2014 at 1:28 pm

      Susan, presumably because the job she is in falls within the scope of a collective agreement that includes a union dues clause.

  6. R Longstreet Reply

    July 7, 2014 at 4:38 pm

    In Ontario can I have my union dues go towards heart and Lung? as oppose to the union?

    • Doorey Reply

      July 7, 2014 at 6:29 pm

      R Longstreet, no.

  7. Dan McGarry Reply

    July 8, 2014 at 9:29 pm

    David,
    What if Longstreet is employed in a federally regulated workplaces operating in Ontario?

    From the Canada Labour Code Part I Section 70

    (2) Where the Board is satisfied that an employee, because of their religious conviction or beliefs, objects to joining a trade union or to paying regular union dues to a trade union, the Board may order that the provision in a collective agreement requiring, as a condition of employment, membership in a trade union or requiring the payment of regular union dues to a trade union does not apply to that employee so long as an amount equal to the amount of the regular union dues is paid by the employee, either directly or by way of deduction from their wages, to a registered charity mutually agreed on by the employee and the trade union.

    We are aware of the Lavigne decision but can a worker in a provincially regulated workplace make a similar arrangement with their union?

    • Doorey Reply

      July 8, 2014 at 9:32 pm

      Dan, there is nothing in his comment to suggest his unwillingness to pay union dues has anything to do with religion.

  8. Dan McGarry Reply

    July 8, 2014 at 10:03 pm

    True, but if it is, then wouldn’t the religious objection clause apply in a federally regulated workplace. And what of provincially regulated workplaces in Ontario?

  9. Fernando Reis Reply

    July 9, 2014 at 1:55 am

    My understanding is that such an arrangement only applies in a first contract situation(s 52(2))and has no application to employees hired after the collective agreement is entered into. In addition, the equivalent amount in union dues is to be made to a charity.

  10. Ron Fraser Reply

    March 25, 2015 at 10:16 pm

    Is there not also a part of the Rand Decision that states you can choose to pay your union dues to a charity instead of the union. I believe someone tried to get out of paying union dues for religious or some other reason and the decision was that you still had to pay but could redirect it to a charity. If so does this apply to Ontario, Canada labour law. I am pretty sure I heard this when I was a member of PSAC.

    • Doorey Reply

      March 27, 2015 at 12:05 pm

      Hi Ron, the religious exemption exists in the statute, though it is very rarely applied since most religions do not prohibit people from paying a fee for services.

  11. Jimmy Reply

    April 2, 2015 at 4:50 pm

    Union dues deductions are democratic in the sense that the workers have the right to vote into the union. I worked 5 years in the automotive industry and was a dues paying member of the UAW/CAW. The union was already established years before I got the job. Probably about 50 years earlier, I’m not sure but long ago. From day one union dues were taken off my check and I had no say whether I was unionized or not, it came with the job. How is that democratic when the original members had the only say years earlier and are no longer even working at the plant anymore? In fact, no one is workin at that plant, it closed.
    Your blog also mentions the free rider concept that a worker maybe receiving the benefits of the union without paying dues. In other words, the union provides a service and any service has associated costs. I am no longer unionized but when I pay for a service from a lawyer or whomever, I get charged HST. I am a professional and I get charged HST for my professional dues and I can honestly tell you that my professional association does not offer near the service and benefits of an union. Unionized workers are better paid and receive superior benefits – that is a good service. Yet, there is no HST applied to union dues. Isn’t that concept in itself a “free ride”?

    • Doorey Reply

      April 8, 2015 at 1:21 pm

      Hi Jimmy, the requirement to pay union dues is found in a collective agreement. The law (in Ontario) says that no collective agreement can come into effect until a vote has been held and a majority of the employees covered by the agreement vote to accept the collective agreement. Therefore, a union dues clause is as democratic (or undemocratic) as any other clause found in a collective agreement–wages, benefits, seniority, etc. It is there because a majority of employees voted to have it there. If a majority of employees don’t want to pay dues they could insist that the dues clause be removed or changed. That is unlikely to happen of course because the union leadership would not service a unit for free, so the law allows a majority of employees in the bargaining unit to vote out the union. The real argument that opponents of dues clause make is that the majority can impose rules (pay union dues) on the minority. That is true, and it is also true of course of any democratic system, such as our electoral system.

  12. Anthony Reply

    April 4, 2018 at 4:53 pm

    I have a question regarding union dues clauses. In an our union agreement, there is a clause mandating that the company has to collect and remit union dues to the union. However, there isn’t a clause stating that unions dues are mandatory for union member or how much is required? Does there need to be an explicit statement that a union member must pay union dues and an amount?

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