December 8, 2016
Labour law history teaches us that partisan or ideologically driven laws that shift the balance of power too far in favour of employers or unions rarely survive the government that enacted them. And so it comes as little surprise that the federal Liberals have announced their intention to repeal Bill C-377, an antiunion, ideologically driven labour law disguised as a tax law.
Bill C-377 would have required unions to regularly prepare and submit reams of documents accounting for how they spend their money and their time, information
that would then be posted on a government website. The objective was bury unions in red tape, arm employers with information about union’s finances, and provide an opportunity to anti-union advocacy organizations to scour the reports in search of any morsel of information that could be used to embarrass unions.
The regulation of the relationship between unions and union members falls within provincial jurisdiction in Canada, and every province has some sort of law regulating what information must be provided by unions to the their members. However, the Conservatives argued that Bill C-377 was really a tax law (federal). Conservatives argued that organizations that receive special tax benefits must account to ‘taxpayers’ for how they spend their money. Fair enough. Yet Bill C-337 applied only to unions, and not to any other organization that also receives special tax treatment, such as charities, professional organizations, or corporations. The majority Conservatives could offer no explanation for this glaring contradiction. The obvious hyper-partisan nature of the Bill provoked a highly unusual backlash by both Liberals and (some) Conservative Senators that initially stalled the passage of the law.
The Liberals promised to repeal Bill C-377 if elected, and now they have reaffirmed their commitment to do so. That commitment appears in the Mandate Letter sent from the PMO’s office to the Minister of Employment, Workforce Development and Labour.
The Mandate Letter also notes that the government will be repealing Bill C-525, another Conservative law that changed the manner through which unions in the federal jurisdiction become certified and de-certified. That law followed the lead of Conservative governments across the country in repealing the traditional Canadian approach to proving majority support based on the collection of union membership cards on behalf of a majority of employees. Instead of this card-check system, Bill C-525 would have introduced a two-step process involving both the collection of cards, and then a second requirement for the union to win a vote. Academic studies demonstrate that union success rates in organizing new units falls when the model switches from card-check to mandatory vote.
The Mandate Letter also suggests that changes are coming to the Employment Insurance Act to “better align” the legislation “with the realities of today’s labour market”. We will have to see what this means, keeping in mind that the path to the dismantling of the unemployment insurance regime in Canada began in earnest in 1996 under a Liberal government (as explained in Chapter 30 Regulating Unemployment in my book The Law of Work) with reforms designed to reduce both the level of benefits and access to benefits, and expand the circumstances in which unemployed workers would be disqualified from benefits. The Conservatives continued along that path during their reign.
There are also some interesting references in the Mandate Letter to changes in access to youth training and possible reforms to the Canada Labour Code to allow “flexible work arrangements”. ”Flexibility” always sounds nice, but it is also often code for giving employers more discretion to alter working hours and avoid overtime pay. On this point, see my York colleague Mark Thomas’ great little book Regulating Flexibility, which explores how the Mike Harris Conservative government in Ontario dismantled employment standards protections in the 1990s in the name of so-called ‘flexibility’. So again, we will have to see how these vague promises translate into legislative reform.
The Law of Work Cross-Reference
Chapter 30 – Regulating Unemployment
Part IV (due 2016): The Collective Bargaining Regime