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Collective Bargaining vs. Collective Voice in Labour Law: A Primer

I chaired a panel last weekend in St. Johns for the Canadian Association of Labour Lawyers that considered the collective bargaining aspects of the Ontario Changing Workplaces Review (CWR).  The CWR interim report will be released soon, written by Michael Mitchell and Justice John Murray.  The CWR has drawn broader attention to a subject that has interested labour law academics for some time:  collective voice.  There was much discussion about collective voice in St. Johns, between beers and screech.   This post provides a general overview of what scholars are referring to when they argue for collective voice, and also distinguishes between collective voice and collective bargaining.

I.      Collective Voice: A Quick Primer

Brian Langille penned a great article years ago called “Labour Law is a Subset of Employment Law”.   I’ll steal from Brian and say that “Collective Bargaining is a Subset of Collective Voice”.   When labour law academics speak about collective voice, they are referring to the legal mechanisms through which workers are granted a means to participate in important workplace decisions that affect their livelihoods.  A system in which employers can make all decisions without any input from workers and in which employers can terminate the employment of any employee who voices concerns or opinions about working conditions is a system without collective voice.  For decades, scholars have argued that a system with no collective voice is a failed system that will produce a range of negative results for workers, employers, the economy, and society.

Human resources scholars have long argued that workers are more productive when their views are solicited and taken seriously by employers.  Industrial relations cwrscholars have demonstrated that workers who have a means of collective voice in the workplace are more likely to participate in political elections and other important civic activities.  In other words, collective workplace voice spills over into democracy at large in important and beneficial ways.   Workplaces with effective employee collective voice institutions are far more likely to comply with employment laws, so that promoting collective voice is considered to be an important tool for promoting legal compliance.  There is a long-standing and rich academic literature exploring the importance of employee voice, some of which I review in a paper called Graduated Freedom of Association:  Worker Voice Beyond the Wagner Act.

But maybe most importantly, the right to voice your opinion at work is about human dignity and respect.    The ability to have voice at work is, to use the words of Professor Alan Bogg (Oxford) and Cindy Estlund (NYU), about being free from domination:  ”citizenship in a free and democratic society entails the right to be free from domination by others.”   In the workplace context, collective voice is the means through which workers can express their views and have a say in matters that greatly affect them.  In the common law system employers can always terminate an employee for any or no reason at all, including for speaking up about injustices at work.  In Canada, and elsewhere, employees often responded to this circumstance by organizing into groups (unions) and sometimes by refusing to work (strike).   Over time, governments responded by legislating controls on collective action while at the same time protecting certain rights to collective bargaining and collectivization (the right to join unions).

II.     Collective Voice vs. Collective Bargaining

Unions and collective bargaining are the most effective and visible form of collective voice, but they are not the only form.   The reason that collective voice is attracting so much attention now is that collective bargaining is available to fewer and fewer workers in Canada (and much of the world, actually).  In Canada, nearly 85 percent of the private sector is nonunion.  Yet studies show that many of those workers would like some form of collective voice if they could get it.  This is known as the collective presentation gap.  The CWR discussion paper talks about the need to consider how to close this gap.  Let’s explore some of the options being bandied about.

  A.   Expand Access to Formal Collective Bargaining

Much of the focus on submissions to the CWR, especially from unions, is on how legal reforms could expand the reach of collective bargaining between unions and employers.  The argument here is that  collective bargaining betweens unions and employers is by far the most effective form of collective voice.  Unionized workers are paid more, have better benefits, better pensions, greater job security, and unionized employers have a much greater level of compliance with legislation designed to protect workers.  Moreover, unions ensure that workers are not summarily dismissed for speaking up at work.

Therefore, the majority of submissions to the CWR call for legal reforms that would extend the reach of formal collective bargaining.   These can be broken down into sub-categories:

*  Removing exclusions so that more employees can unionize.

*  Introducing laws that make it easier to unionize, including re-introducing card-check certification, introducing new stream-lined certification procedures such as electronic balloting, providing unions with lists of employees so that they know how many employees they need for a majority.

*  Introducing laws to strengthen union collective power, including banning replacement workers during strikes and lockouts, greater protections for striking workers, and easier access to first contract arbitration or interest arbitration, especially in the case of long work stoppages.

*  Allowing consolidation of multiple bargaining units of the same employer.  In 1993, I spent a summer drafting applications to consolidate bargaining units of various retail stores when a consolidation law briefly existed.  If a union represented 8 Bay stores, the law permitted the labour board to consolidate all 8 stores into a single bargaining unit.  The one larger unit has more bargaining power than do 8 single stores all bargaining their own collective agreements.

*  Introducing new forms of sectorial or broader based bargaining.  This is perhaps the most dramatic reform option being considered.  The purpose of sectorial bargaining is to enable employees in sectors where unions have traditionally not been able to gain a foothold.  Bargaining would take place at sectorial level rather than by individual workplaces.  Sectorial bargaining is common in Europe and in the construction sector in Canada, but it would mark a big change for other sectors.  I discussed one option being explored in an earlier post.

*  Allowing for the extension of collective agreements to nonunion workplaces.  In Quebec, there is a decree system in some sectors that permits the government to extend the application of a collective agreement to nonunion workplaces.  This is another option for extending the reach of collective bargaining, albeit in an indirect manner.

B.    Introducing Other Forms of Collective Voice

All of the above summarized reforms seek to expand collective bargaining and union representation to nonunion workers.   However, unions are not the only institution for collective voice and collective bargaining is not the only form of collective voice.

Some scholars have proposed legal reforms that would require employers to consult with nonunion forms of employee association, such as employee committees or European style “work councils”.   Indeed, some of Canada’s leading scholars have made this suggestion over the years.  For example,  Professors Paul Weiler (Osgoode, Harvard) and Roy Adams (McMaster) argued as far back as the 1980s that labour laws in Canada and the U.S. should  mandate employee committees in nonunion workplaces as a means of providing voice where there is none.  More recently, Cindy Estlund (NYU), Harry Arthurs (Osgoode), and Raphael Gomez (U of T) have also proposed nonunion employee associations in some form as a measure to help fill the representation gap.

Another proposal is to introduce a Canadian version of the American Section 7 of the NLRA.  That section guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”.   This section is broader than the typical Canadian unfair labour practice provision, which protects workers from retaliation for engaging in “union activities”.   Section 7 has been found to protect the right of nonunion workers to engage in collective action, including to strike and to voice concerns about the workplace.   A Section 7 equivalent in Canada would provide a broader scope of protection for employees who raise concerns about working conditions with their employer when they are not acting through a union.

Finally, some scholars, including myself, have argued that it is possible for the law to recognize both a ‘thick’ and ‘thin’ version of collective voice that would provide employees who cannot access full-fledged majority collective bargaining with a lesser bundle of collective rights.  I argued for example that all Canadian employees should have the ability to exercise at least the core minimal rights to collective voice recognized by the Supreme Court of Canada in its Section 2(d) Charter jurisprudence.  That would mean ensuring that workers can join together into associations, make collective representations to the employer who would be required to engage in a meaningful dialogue about those representations.  The association could be a minority union, or some other form of non-union association, such as the employee association at WestJet or a worker activist centre, such as the Workers’ Action Centre in Toronto.  I wrote that paper before the SCC recognized a Charter right to strike, so important revisions are now needed.

Concluding Thoughts

As you can see, there is a lot on the table.  Driving these discussions is the reality that the Wagner Model of majority trade union collective bargaining that we use in

Tim Hudak:  No Value in Collective Voice

Tim Hudak: No Value in Collective Voice

Canada (and the US)  is not working in the private sector as the central legislative tool to promote worker voice in Canada (or the U.S).   We are staring at a unionization rate of about 10% in the private sector in the next decade.  If we care about workers having voice at work, then it is obvious that big legal reforms will be needed.

Of course for those opposed to collective worker voice, the decline of collective voice is great news.  The Conservative Party led by Tim Hudak in the last election was hoping to drive down the levels of collective bargaining to even lower levels, the sooner the better.   This view that collective voice should be resisted and not promoted by law seems to be shared by most Ontario employers, whose submissions to the CWR mostly assert that there is no crisis of collective voice and that really nothing needs to change in terms of collective bargaining law.  However, for those who believe that collective voice is crucial to addressing growing income inequality and workplace justice and fairness, the time is now to steer a new course.  The big question will be whether our politicians have the vision and the courage to take the helm.

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