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UPDATE: The Legal Aid Lawyers Story Demonstrates Need for a “Graduated Freedom of Association” Model in Canada

HERE’S AN UPDATE (Oct. 21, 2013):  

The Employer (LAO) has finally responded to the union’s request for voluntary recognition of Legal Aid Lawyers.  The post below recounts the story.  See the LAO’s letter to the union, and the union’s reply below.

The employer’s response is that since it has no statutory obligation to recognize a union as the representative of its employees, it has no other legal obligation to acknowledge or discuss terms and conditions with its employees’ chosen collective association.  There’s no response to the claim that the Charter requires the employer to bargain with the union, even if the Labour Relations Act does not.  The LAO position appears to be that if a group of public sector employees are excluded from the LRA, then the employer can ignore any employee association the workers’ choose to support.

 

Bob Ward, President CEO Legal Aid Ontario: Thumbs Nose at Lawyers' Union?

Bob Ward, President CEO Legal Aid Ontario: Thumbs Nose at Lawyers’ Union?

I think that’s a surprising position for the LAO to take.  I also think it is legally incorrect, given that the Supreme Court of Canada has ruled that a legal regime that makes it impossible for employees to engage in a meaningful dialogue with an employer through an employee association is unconstitutional.  Yet that is exactly what the LAO appears to be saying is the result of the exclusion of lawyers from the LRA.

So my bet is that the LAO is in violation of the Charter, and would be found to be so if the issue were litigated.  That of course assumes that the SCC does not completely rewrite the Section 2(d) jurisprudence (again) in any of the many cases soon to come before it on the scope of freedom of association.

Here is the LAO’s letter to the Union [Note how the LAO president suggests that the identity of the employees' chosen union is somehow relevant].

Here is the union’s response letter.

What do you think labour lawyers and students? Is the LAO violating the Charter by telling the union to get lost?  

Or does the Charter permit a publicly funded employer to ignore the choice of its employees to be represented by a union?

* * * * * * * * * * * * * * * * * *

My Original Post from September 26, 2013

 

Yesterday, the Ontario Attorney General told the media that he supports the right of Ontario’s legal aid lawyers to exercise their Charter right to freedom of association.   What’s going on here, and why would the A-G feel the need to make such a statement in the first place.  After all, why wouldn’t workers have a right to exercise their Constitutionally protected right to collective bargaining?

The Legal Aid Lawyers Scenario

This is an interesting story,  that flows from the Supreme Court of  Canada’s recent redefining of Section 2(d) [freedom of association] of the Charter of Rights and Freedoms.

LAO Lawyers Rebuffed in Unionization Effort

LAO Lawyers Rebuffed in Unionization Effort

The facts are this:  legal aid lawyers are excluded from the standard Labour Relations Act in Ontario, the statute that creates the rules around union organizing and collective bargaining [Section 1(3) excludes practicing lawyers].  That means that they can’t just apply for certification and win a legal right to bargain collectively like most employees in Ontario.

However, that doesn’t mean that they have no right to collective bargaining.  It just means their right to bargain is
not governed by the Labour Relations Act.  The Supreme Court has ruled in a series of cases that the Charter guarantees a right of workers to form unions without employer interference, and to approach the employer as a collective, and make ‘collective representations’.  The employer is then required to engage in ‘a meaningful dialogue’ about the union’s representations.  These are the minimum Constitutionally required entitlements of workers under Section 2(d).  This flows from the SCC decisions in Ontario (AG) v. Fraser and the B.C. Health Services case.

Since the Legal Aid employees are government employees, the Charter applies to their employment relationship directly.  Therefore, if their employer denies their Charter rights, those employees can bring a Charter application asking a court to order the employer to behave.

Some 80% of the legal aid lawyers signed a petition saying they want collective bargaining, but when the union contacted the employer to begin the process of Charter guaranteed collective bargaining, the employer just ignored them.  The workers have explained the situation in this “Open Letter” to the head of Legal Aid Ontario.  The refusal by the employer to acknowledge and meet with the union, and to engage in a meaningful dialogue with the union would seem to be a clear violation of Section 2(d) of the Charter.  The A-G is basically telling LAO to comply with the Charter. As I understand it, the union has its’ lawyers reading to go on a Charter challenge if necessary.

The Stupidity of the Ontario Model and the Need for Graduated Freedom of Association

The Legal Aid lawyers story exemplifies a point I’ve made before about the stupidity, or at least deficiency in our existing labour law model in Ontario (and across Canada).

As noted, the SCC has said that the Charter guarantees the right of all workers to come together as a collective, without interference by the employer, and to make collective representations to their employer ,who must listen and engage in a ‘meaningful dialogue’ with the employees and their representative.  Yet the majority of workers in Ontario are unable to exercise these rights, and have no legal means to force their employers to recognize their freedom of association entitlements.  Their Charter guaranteed rights are meaningless in practice.

The Labour Relations Act protects the rights required by the Charter, and more (like a right to strike), but only if a majority of employees in a bargaining unit support the union.  If 50% or less of workers support a single union, then the Labour Relations Act doesn’t require the employer to even acknowledge the employees’ desire for collective bargaining . So, in a factory of 500 employees, if 250 choose a union to represent them in collective bargaining, our law allows the employer to tell those employees and their union to go to hell.  Similarly, if 400 of 500 employees want collective bargaining, but they chose different unions so that no one union represents greater than 50% of workers, our law allows the employer to ignore the collective bargaining demand of all the workers.  This is a very unusual state of affairs by international standards.  These private sector workers won’t win a Charter challenge, because the Charter doesn’t apply to a private sector employer.

In a public sector workplace, the scenario is slightly different.  If 250 of 500 employees want collective bargaining, and they approach their employer to begin ‘collective bargaining’ [in the Fraser sense], their employer cannot tell them to go to hell, which is what Legal Aid Ontario is doing.  The employer can’t do that because the Charter applies directly to public sector employers.  However, to force the employer to comply with the Charter, the workers need to bring a very expensive, time-consuming Charter challenge in the courts that uses up both the union’s resources, and taxpayer resources in the form of government lawyers and judges.

This is backwards and completely unnecessary.

I’ve argued in a paper called Graduated Freedom of Association: Worker Voice Beyond the Wagner Model, in the latest Queens Law Journal, that Canadian labour law should be reformed in light of Fraser to created a tiered or ‘graduated’ form of collective bargaining rights.  The Wagner style majority model presently in our labour relations statute should remain in place to deal with workplaces where a majority of workers wish to be represented by a single union.  However, a new secondary ‘lighter’ model should be introduced as a compliment to give meaning to the Charter guaranteed minimum level of collective bargaining rights.

In this model, workers who wish collective bargaining, but are unable to attract the support of a majority of their coworkers, or are uninterested in doing so, would still have the legal possibility of exercising their Charter rights to form an association, make collective representations to their employer, and have their employer engage in a meaningful dialogue with them about those representations.  The SCC has said that labour policy should reflect Charter values.  Our present model falls far short of that standard.

In the model I propose, the legal aid lawyers would not need to bring a Charter challenge.  They would just need to file a complaint under the new statute, and the labour board would be able to order the employer to ‘bargain’.  Similarly, if only 40% of employees in a private sector workplace want union representation, their employer would be required to meet and engage in a “meaningful dialogue” with the union.  I argue in the paper that even this ‘thin’ right to collective bargaining could be harnessed to provide valuable voice to workers outside of the majority Wagner model.

 Issues for Discussion

1.  Do you think that Legal Aid Ontario has a defense to the claim that it is violating the Charter by refusing to meet with the chosen union of 80% of the lawyers?

2.  What do you think of my argument that the law should be reformed to graft onto our existing majority rules model of labour law a ‘lighter’ version of collective bargaining that guarantees workers at least the minimum level of collective bargaining rights guaranteed by the Charter? 

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6 Responses to UPDATE: The Legal Aid Lawyers Story Demonstrates Need for a “Graduated Freedom of Association” Model in Canada

  1. Brian Reply

    September 29, 2013 at 4:28 pm

    I think another important question here – especially considering in this case a clear majority of workers have decided on a union – is whether the exclusion of certain professional employees in the various provincial Labour Relations Acts should be reconsidered.

    It seems to me like they were drafted with the notion of an independent professional working for himself (such as doctors running their own practices and charging fee for service, or architects working out of their own offices) in mind, not government lawyers working out of a cubicle in a government office.

    • Doorey Reply

      September 30, 2013 at 1:19 pm

      Hi Brian, I agree that all of the exclusions are now subject to a Section 2(d) challenge. As per Fraser, the occupations would need to prove that they are unable to make collective representations to their employer without the statutory coverage. It seems to me that in the Legal Aid lawyers case, the employer is making that case by simply ignoring the union outright. Dumb strategy from an employer perspective.

      • Brian Reply

        October 1, 2013 at 1:08 am

        True, I guess it might depend on what sort of role the professional organization to which they belong takes. In some ways, they function like the craft unions of yore in regulating entry to the trade. And, my understanding is that some of them do take on some sort of collective representations – such as the various Doctors’ organizations and their role negotiating with the provinces regarding fees for service. It would probably be harder for them to make that argument, but I can see it easily made for other groups professionals like these Legal Aid lawyers.

  2. Pingback: Professor Doorey’s Blog: Law of Work

  3. Grace Reply

    October 3, 2013 at 1:03 pm

    I am interested to hear your views on what right, if any, lawyers who work in Ontario’s many community legal clinics have to collectively bargain as a group. General service community legal clinics are directly funded by LAO. Is it an insurmountable hurdle that each community legal clinic is an independent, non-profit corporation even though all the salary funding comes directly from LAO? It is my understanding that LAO imposes the salary grid on Clinics. In other words, a lawyer is paid what LAO funds the Clinic to pay that lawyer. Needless to say, there are significant issues with the adequacy of the salary grid.

  4. Chris Reply

    October 9, 2013 at 2:15 pm

    Clinic lawyers are not necessarily paid on the exact same grid as LAO lawyers. Clinic lawyers can often be paid more than lawyers working directly for LAO (which is not to say great amounts more, but more).
    The clinic system is a good example, however, of the silliness of looking for one employer for a group of employees. We saw another example of this in teacher bargaining. The OLRB found it didn’t have jurisdiction to deal with the Ontario government’s actions during bargaining with teachers because the government isn’t their employer, the school boards are. That’s just asinine. Of course the government is the employer: it holds the purse-strings. It’s the same with LAO and legal clinics. LAO provides the vast majority of funding for legal clinics, but clinic lawyers probably wouldn’t be able to include themselves in a LAO lawyer bargaining unit. I see no reason why two or more legal entities should not be routinely named as one employer for collective bargaining purposes. The entities making-up the employer can meet with the union. If the entities disagree on what position to take with the union, that’s for them to work-out internally, but they should both be held responsible for the positions they take at the bargaining table. Insisting on the identification of a single employer for a given group of employees frustrates the purpose of labour relations legislation needlessly.

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