Follow Me on Twitter

Some Implications of a Canadian “Right to Work” Law

Regular readers will be aware that the Ontario Conservative Party and maybe the Federal Conservative Party too are contemplating bringing to Canada a controversial labor law used in 24 American states, mostly in the low-wage Deep South.  I’ve written about these laws before. Americans call these laws ‘right to work’ laws.  Their purpose  is to make it more difficult for unions to collect revenues, and thereby to weaken the labour movement. Essentially, the laws say that unions and employers can’t agree to a collective agreement clause that requires employees to pay union dues.

Ontario law at present leaves the issue of how unions dues are collected, and who pays, to a

Tim Hudak's Labour Law Proposal Raises Big Questions

Tim Hudak’s Labour Law Proposal Raises Big Questions

majority vote of the bargaining unit employees.  If the employees vote for a dues clause to be included in the collective agreement, then it goes in, and it can require everyone to pay equal dues.  The Ontario Tories have threatened to ban dues clauses in collective agreements.  However, the details of what such a law would like in the Canadian context is uncertain.

The American Model of Mixed Jurisdictions

In the United States, jurisdiction over labor relations is shared between the Federal government and the States.  The Federal National Labor Relations Act gives a union representing a majority of workers the exclusive representation rights for all workers in the bargaining unit.  The employees and the union can chose to bargain a union dues clause that requires everyone covered by the collective agreement to pay an equal share of union dues.  In exchange, the law requires unions to represent all workers in the unit equally, in bargaining and servicing, including processing of grievances and in expensive litigation.

However, American States have the right to enact their own laws that can prohibit mandatory union dues clauses. “Right to work” states have done that.  But since the duty of fair representation imposed on unions under Federal law still applies, you have the odd (and highly unfair and controversial) result that unions in ‘right to work states’ have a legal obligation to represent nonmembers who do not pay any dues, to the same level as dues paying members. Thus, as a result of the historical interplay between Federal and State laws, in ‘right to work’ states, unions are ordered by law to provide free professional services to nonmembers!  It was on this basis that an Indiana ‘right to work’ law was recently struck down as a violation of the State Constitution, which protects organizations from being forced to provide services for no remuneration.

The Canadian Model Is Different

An Ontario government wouldn’t be burdened by a Federal duty of fair representation law.  Therefore, the only sensible and fair approach to a law banning union dues clauses in Ontario law would also include an exception to a union’s duty of fair representation to employees who opt not to be members and not to pay union dues.   That’s not to suggest this is how the Tories will see it. They may indeed see no problem with forcing their enemy (unions) to provide legal (and other) services for free to nonmembers. I just can’t think of  a theory of justice or fairness that could defend that approach.  Can you?

Can you think of another example of a Canadian government ordering a private organization to provide free professional services?  

Do you think a law ordering a union to provide free professional services to non-members could withstand a Charter ‘freedom of association’ complaint?

The Charter argument is an interesting one.  But there’s an even more fundamental question.  If we assume that the Ontario Conservative Party wouldn’t go so far as to order unions to provide free services to nonmembers, then we are heading into unchartered territory, towards members-only representation and the end of the exclusive representation model of labour relations that has ruled in Canada since the 1940s.

One option for a new model is that unions would only be required to represent workers who pay dues.  So, for example, in a unit of 100 employees, say 20 opt to stop paying dues.  A law could say that the union has no duty to represent those 20 employees.  If fired, the union would have no legal obligation to represent the worker in an arbitration hearing challenging the dismissal.  Maybe the worker has the legal right to hire his own lawyer or represent himself in litigation, but the union couldn’t be forced to spend tens of thousands of dollars of its dues paying base on an arbitration for someone who opted not to pay the legal insurance premiums (dues) that fund that representation.  This is a fair outcome.  If I don’t buy house insurance and my home burns down, I shouldn’t expect the state to order the insurer to pay my expenses. I opted out of paying premiums. That’s the risk I took.

It makes perfect sense that a worker who opts out of paying union premiums forfeits all of the benefits those premiums cover.  But employers would have good reason to worry about that system.  Employers usually like that unions act as gatekeeper for grievances, weeding out the stupid ones before they reach costly litigation.  Unions too might have concerns about a system that allows individual workers to arbitrate any issue they like, because a risk of bad precedents arises.

Questions Arising from a Move Away from a Majoritism Model

A system that requires unions to fairly represent only workers who pay for their services seems sensible, but it opens up all sorts of legal and practical issues.

Would the present law prohibiting employers from bargaining and entering into side agreements with bargaining unit employees continue to apply to workers who are not union members, and who don’t pay dues?

Could a union bargain preferred benefits or higher wages only for dues paying workers?  

Alternatively, could employers try to bargain a collective agreement clause that would pay non-dues paying workers more than dues paying workers?

Or maybe we should just jettison the majority, exclusive union representation model altogether, and introduce a new system of members-only, minority union collective bargaining.  Workers can join a union if they like, or not, and the employer deals with any union that represents its workers, whether or not the union represents a majority.  A collective agreement would only apply to union members, and  employers would be required to bargain with whatever union, or unions, their employees join, regardless of whether any union represents a majority.  Non union workers could bargain their own deals with the employer. This is a model used in various forms in other countries.

In that model, could employers just give all nonunion members a huge raise, to punish union members and discourage union membership?  Maybe that is where the Tories eventually want to go.  Or, would existing unfair labor practice laws, which prohibit employers from awarding benefits for the purpose of punishing union supporters or to discourage workers from joining unions still govern?

Two Possible New Models of Collective Representation for Canada and the USA

Professors Fisk (UC Irvine) and Sachs (Harvard) have proposed a model for the US that drops the duty of fair representation obligation for workers who don’t pay union dues, opening up a ‘members only’ bargaining regime for the US.  Here’s their recent paper entitled Restoring Equity to Right to Work (especially Part II).  Employers would have a duty to bargain with unions who represent only their own members, or with an exclusive union if it represents a majority of workers in a unit, as per the existing model.  Whether preferential treatment given to union members or non-union members is unlawful would depend on whether the objective was to “encourage or discourage union membership”.  If so, existing unfair labor practice laws would render that action unlawful.

Interestingly, I made essentially the same argument in the Canadian context in a recent Queens Law Journal paper called “Graduated Freedom of Association“.  I argue that Canadian law should recognize both a members only ‘light version’ of freedom of association when no one union represents a majority, while maintaining the existing system of exclusive union representation when a majority of workers want to be represented by a single union.  I argue that my model of Graduated Freedom of Association is most consistent with the vision of labour relations crafted by the Supreme Court of Canada in recent Charter decisions.

Questions for Discussion

Do you think the Conservatives intend to force unions to provide free professional services to workers who opt not to pay union premiums/dues?

If so, do you a law that forces a private association to provide costly professional services to individuals for free violates any section of the Charter?

If not, how would you draft a law that permits a union to provide services and benefits only to workers who pay for those services?  Can such a system operate within our existing majority rules and exclusive union representation system?



15 Responses to Some Implications of a Canadian “Right to Work” Law

  1. Eric Dunbar

    October 22, 2013 at 12:59 am

    1) Do you think the Conservatives intend to force unions to provide free professional services to workers who opt not to pay union premiums/dues?

    Yes, my gut says that is the Progressive Conservative’s goal in Ontario–place onerous financial burdens on unions (particularly ones representing those evil public servants). Much of the appeal of right-to-work(-for-minimum-wage) legislation is the unfair burden of representation that it places on US unions as a result of the quirk in US federal-state jurisdiction.

    That said, I don’t think the PCs are stupid enough to enact that kind of legislation here given the realities of our political system.

    Ontario has not been a conservative hegemony for 30 years now (not since the minority governments of the 1970′s), and, in recent years both the NDP and the Liberals have proved themselves to be politically strong and representative of Ontarians’ values (and, the more Ontario urbanizes, the more Ontarians will become centrist–in 40 years the GTA will no longer be a sure bet for (Progressive) Conservatives in a swing election).

    Resentment and jealousy of unionized workers is widespread, but, I don’t think it’s particularly deep. You can get away with union bashing to drum up populist votes when times are tough, but, the moment you start getting into the territory of unfair policies, the electorate takes notice because 97% of them are in jobs that either directly benefit from unionization or could be improved with unionization.

    The Harris Tories played divide and conquer for 5 years, long enough to split the opposition neatly between the Liberals and the NDP for two election cycle. However, those Tories also burned so many bridges with the public in their 8 neoconservative years in office that even now, a decade after the fall of the second Harris government, the mere specter of the Harris acolyte, Tim Hudak, taking the reigns in Ontario was enough to send voters back to Dalton McGuinty.

    And, more recently, we saw McGuinty himself get punished in byelections in favour of the NDP for playing fast and loose with collective bargaining with the teacher unions.

    Like John Tory in 2007, McGuinty snatched defeat from the jaws of PR victory when he courted the conservative vote by setting himself up as tough-on-teacher(unions).

    In the end the unnecessarily antagonistic nature of the legislation placed him firmly in the position of the aggressor with the unions becoming the underdog. This was in an economic climate where he could’ve used the moral imperative to engage in a protracted and slightly messy bargaining session, but, he would’ve had the moral high ground.

    Instead, because he went the bully route, egged on by the PCs, he gave the electorate enough pause to refrain from supporting him, or the Progressive Conservatives who had been more than happy to support his tough-on-union position in the by elections that followed.

    2. If so, do you a law that forces a private association to provide costly professional services to individuals for free violates any section of the Charter?

    You would be expert on that count :) . Whether or not it’s legal is one question. Whether or not it’s fair is actually a much more important one.

    Political strategists think in terms of 4 to 8 years. Unions burdened by a requirement to provide services for free will be able to occupy the moral high ground to hammer home the unfairness of the situation. They’ll also be able to outlast any right-wing government long enough to fight another day. The reality is that strikes are by far the most expensive part of a union’s dues and strikes are exceedingly rare. There are other bargaining chips in a union’s arsenal that are much less costly than a strike but are (nearly as) effective.

    Plus, is there precedent for such a situation? Are there examples of organisations, individuals or professions required to provide services for free where hardship or public service is not an issue? Lawyers know the concept of pro bono, but, that is done for clients who cannot afford to pay for services. It would be hard to see that moral argument hold water for unions providing representation for non-union members who are working for the same employer as union members, likely earning roughly the same wage.

    Anyway, thanks for the thought-provoking questions. You make me wonder if law might’ve been a good career.

    • Doorey

      October 22, 2013 at 1:09 pm

      Eric, thanks for the thoughtful response.

  2. john

    November 29, 2013 at 3:45 am

    As a voting conservative and union member (autoworker) I will send my vote to the liberals. There is nothing conservative about “right to steal” services. You can call it right to work but you just lost my vote.

  3. Gord

    March 6, 2014 at 5:41 pm

    This is a sly attempt to destroy unions. How do they think that this in any way is in the best interest of the Canadian workers that are protected by the unions against bad employers. Without the unions we would get treated like cattle. What ever happened to middle class. The rich are rich enough sucking the life out of there workers and want us to do it for nothing. Unions are private organisations that fight for the rights of the worker’s to insure a decent standard of living for it’s workers built by it’s workers. This is why the unions are even more important than ever before as
    Now the worker’s of this province are not only under the attack of greedy employers but the government that backs up that greed. It’s just like the government to again launch themselves into our pockets and have us pay for those who don’t want to pay their dues. Why would anyone want to represent people for free why should they? Why should they? What’s next are they going to pass a law that says I have to work for free? Or you have to work for free or next to nothing? Having to rely on government hand outs that are not there. Maybe right to work should mean get to work and pay your dues. Reward the workers protect the worker that pay their dues. Lets face it if the government made sure to protect us and our futures we would not need unions. Keep paying your dues the unions offer more than just protection. Offer training courses and opportunities to better yourself and the people around you that the government will never supply while still being able to pay your bills and take care of your familys. The government should be working with the unions to better their work force not bankrupt them by saying they need to do it for free. Nothing is free. I think they sometimes forget it is our money they are playing with all across the board. Pay your dues and get rewarded that’s how it is supposed to work. Not just be there and be rewarded anyway. If I don’t pay my hydro bill they shut it off lets get real.

  4. malcolm

    September 9, 2014 at 5:45 am

    So why can’t there be laws that make it possible to work anywhere,and have the choice left to the employee,if he or she wants to be a member of a union.I don’t understand how it is considered fair to make a person become a member of a union ,as a condition of employment.

    • Doorey

      September 9, 2014 at 1:01 pm

      Malcolm, the main fight isn’t about whether a person should be forced to become a union member, but whether someone entitled to all of the services unions perform, including bargaining higher wages, better benefits and pension plans, and job security, should get those benefits for free. Right now, unions can bargain a clause saying everyone covered by the collective agreement pays their equal fair share of union dues. In exchange, unions are legally required to represent all employees fairly and in good faith. “Right to Work” legislation in the US model at least entitles workers to all of the benefits enjoyed by union members for free, and still imposes a legal obligation on the union to represent them in arbitrations, bargaining, grievances, and to give them all the same benefits as union members pay for. In other words, ‘right to work’ legally requires unions to provide free services and benefits to non-union members.

      • Bill

        September 9, 2014 at 8:54 pm

        I feel I would be better off without union representation, as I believe I could negotiate a salary outside of the payband for my position due to my unique skills. However, our union set-up prevents me from leaving the union and trying this with my present employer. I do not want free services from the union; I want to be free of the collective agreement which they negotiated (poorly, in my humble opinion). I also want to not pay dues, as I feel the union is a net detriment to my earning potential which I hate to support.

        Now of course I am free to quit my job and work somewhere non-union. Just like someone who wants to be unionized is free to not work at a union-shop?

        • Doorey

          September 10, 2014 at 1:09 pm

          Bill, its not your “union set-up” that prevents you from opting out of the collective agreement and bargaining your own contract, it is the legal model that makes unions the exclusive bargaining agent for all bargaining unit employees. That is, the union does not have the option to let you opt out of the collective agreement even if it were prepared to let you do that. But your story is exactly what the ‘right to work’ lobby uses as the basis for attacking that legal model. The main response is that, while there will always be some workers like yourself who believe they’d be better off without a collective agreement, at the level of the entire economy, the evidence from all over the world demonstrates quite clearly that unionized workers earn more, have better benefits, safer workplaces, and better pension plans, all of which have traditionally be considered good things for a society. That is the trade off that governments debate. The debate sometimes pits individual freedom to opt out of a collective versus the broader social and economic benefits produced by collective action. My own view (backed by lots of evidence) is that the model you’d prefer would over time lead to workers taking home a smaller share of the economic pie and hence to greater economic inequality in Canada, which is very problematic from a social perspective. But obviously Conservatives and workers like yourself disagree with that position, which of course is what makes these debates continuously interesting. Thanks

  5. Brian Powers

    August 22, 2017 at 7:16 pm

    Could you give me an update on where right to work initiatives stand in Canada. I am a United States labor lawyer representing workers and have seen first hand the devastating effect of right to work laws on labor unions encumbered by the duty of fair representation which requires unions to provide full representation to non union workers who have exercised their right to opt out of paying union dues. These free riders have a corrosive effect on the union as others are tempted to obtain all of the benefits but none of the costs of representation. One example is a bargaining unit in Idaho where sixty per cent have dropped out of the union, more than enough to decertify and jettison the union entirely at the locomotive repair shop but that has not happened. The majority apparently want the union (albeit weakened) to negotiate contracts and process grievances, they just do not want to pay for it. This places an unfair burden on those willing to pay their fair share and forces the union to enter negotiations without a strong mandate from the bargaining unit which the employer is quick to capitalize on. The employer in questions operates in several other jurisdictions such as Pennsylvania and Ohio that are not right to work, and they have long negotiated union security arrangement with the union requiring all members of the bargaining unit to pay their fair share.

    • Doorey

      August 26, 2017 at 8:50 pm

      Hi Brian. We don’t have any ‘right to work’ jurisdictions in Canada. Yet. Not surprisingly, there are business interests pushing Conservative politicians to move in this direction and some governments have studied it and rejected it (in Alberta) and other Conservative politicians have campaigned on a promise to do something along the lines of right to work legislation (Ontario), but then lost the election.

      Note too that in Canada, unlike in the US, labour law is provincial and not federal. Therefore even if a government here enacted a legal right for unionized employees to be free-riders (not pay dues) it does not follow that they would also mandate that the duty of fair representation extends to non-dues paying, non-union members, the way that American unions are required to provide free services to free riders. I suspect a law requiring unions to represent non-members and non-dues paying bargaining unit employees would run into Constitutional problems in Canada.

  6. jerzy

    September 9, 2017 at 9:57 pm

    The Rand formula is logically incoherent. It doesn’t actually formulate what it purports to effect. In other words, the Rand formula requires dues and it requires membership – but makes the nonsequater decree that membership is not mandatory.

    The key point in order to understand that the Rand formula is a fraud is that the mandatorty dues is not the meanungful issue as they are des minimas. The meaningful issue is that if a workers job classification is within the scope of the collective agreement the worker cannot opt out of the working conditioms provided for in the contract.

    If it’s the dues (free rider) that labour activists worry about then why not have a formula that mandates dues but does not mandate the individual due-payer and his employer to NOT negotiate outside the parameters of the collective agreement?

    The answer is that the so called fight against “right to work laws” is not about the dues! It’s about forcing collectivity on individual workers who don’t want it. The average union activist cannot accept that there are individuals who accurately calculate that they are better off not being boxed in a collevtive agreement while at the same time their peers may be better off inside a collective agreement. Somehow, the moral high ground is awarded by union sympathizers and the poltical left to forcing individuals into a collective. This thinking is upside down. Moral authority rests in individual freedom.

    • Doorey

      September 11, 2017 at 1:14 pm

      Thanks for the comment Jerzy. Actually the ‘rand formula’ required mandatory dues for workers covered by the collective agreement but not mandatory membership. Outside of the construction and entertainment industry, relatively few collective agreements require mandatory union membership in Canada. Most of the time, no one is required to become a union member and lots of workers at unionized workplaces never do become union members. The fight against ‘right to work’ is absolutely about the dues, contrary to what you assert. Governments that order unions to provide free services to non-members do so with the intention of undermining and weakening unions by draining them of resources. You are correct that a person in a job covered by a collective agreement cannot opt out of the collective agreement. That is a function of the Wagner Model adopted in Canada and the US 70 years ago, which operates on a majority rules basis. If the majority of employees want collective bargaining, then the union is legally mandated to represent all of the bargaining unit employees. We could do away with the majority rules system altogether, which would achieve your goal of never having an employee paying union dues against their wishes. For example, we could just permit anyone who wants to be in a union to be in a union and require the employer to bargain with every union on behalf of only its members. An employer could have multiple collective agreements covering workers doing essentially the same work instead of one. However most employers aren’t interested in giving workers that sort of freedom. If ‘moral authority rests in individual freedom’, then we should all also be able to opt out of paying taxes or obeying laws enacted by politicians we disagree with. Democracy demands limits on individual freedom by its very nature.

  7. Sean Soper

    September 11, 2017 at 5:09 pm

    Wonderful! I heard a mic drop in my minds eye.

  8. jerzy

    September 11, 2017 at 11:04 pm

    Thanks for the work you do with creating your lawofwork blog. I’m a fan. The Rand Formula is intellectually dishonest. To assert that membership is not required inside a wagner model that prohibits opting out of the contract is to make a distinction without a difference. A worker who must submit to the contract is a non-member in name only. This is what makes the Rand Formula disingenuous and a source for confusion among students of law.

    Forcing dues on non-members is not the core issue for me. To me, tt’s forcing the contract on workers that is problematic because it has a high impact on individual freedom.

    Yes. Rule of law – which is a corner stone to any great and propersous nation – requires some forfeiture of individual freedom for practical ends to the society as a whole. This is an inescapable truth. The important thing is to weigh the cost and benefits to any law that limits individual freedom and not pass that law when it over reaches.

    Another way of putting this is to point to the USA. This is a nation that was an example for the rest of the planet on how freedom can unleash greatness in a nation. Before the advent of the USA the West operated under the premiss that the King holds all power and may choose to forfeit some of that power to the people. The USA flipped that concept on it’s head to create a Republic that recognizes the people as holding all the freedom and choosing to forfeit some of it the government. Anytime the people allow their elected politicians to pass a law forfeiting individual freedom, it should not be taken lightly. Public debate and sober thought are crucial.

    I don’t perceive a justifiable reason to prohibit opting out of a contract. The administrative burden of multiple bargaining units under one employer already happens to some extent In any case a clean model could be that only one CBA covers the workers of an employer and anyone who opts out must bargain individually In this way multiple CBAs are avoided and individual workers can opt out.

    • Doorey

      September 12, 2017 at 12:38 pm

      Jerzy, well then you are talking about undoing the model used in Canada and the USA since the 1930s and replacing it with something completely different and unpredictable. Even in right to work states employees cannot opt out of the collective agreement and therefore they get the higher wages, better benefits, and better job security provided by the collective agreement without paying anything for it. That is objectionable. Your proposed model would allow anyone to opt out of the collective agreement altogether, which raises all sorts of difficult questions. For example, given that the right to strike is constitutionally protected in Canada, if we remove exclusive bargaining rights, can any workers strike whenever their own little contracts are up, so that an employer can be constantly under the threat of complete or partial strikes? Does the employer have a duty to bargain with every union that represents any employee? How does having say 15 different contracts covering 100 employees doing basically the same work impede the employers’ ability to reorganize jobs? Do you want a British model, Italian model, French model? People complain about those models as much if not more than they do the Wagner model. You are imagining a perfect world where everything just works out after you repeal a system deeply embedded into the Canadian economic model. On the America is Great argument, I’d just point out that the US has the highest income inequality, among the highest child poverty, among the worst public education and access to health care and lowest chances of upward mobility in the advanced economic world, and is still, after all these years, defined by racial inequality and gun violence. Not my kind of freedom.

You must be logged in to post a comment Login