Written by Dennis Buchanan, Lawyer, Nickerson, Roberts, Holinski and Mercer
Alberta Bill 32 proposes to create a distinction between activities that are political, and those related to collective bargaining and representation of members, and to prohibit unions from collecting dues for the former except from individuals who have expressly opted in. It defines political activity as including:
- general social causes or issues;
- charities or non-governmental organizations;
- organizations or groups affiliated with or supportive of a political party; and
- any activities prescribed by the regulations.
The breadth of these categories is stunning. For example, political activity by a charity is, itself, heavily constrained by the Income Tax Act– to define ‘political activity’ as including charitable contributions strains the meaning of the phrase. As well, defining the boundaries of this division is challenging, as there is no clear bright line between a union’s political activities and its representational mandate.
Political Activities versus Collective Bargaining Activities
Outside of the construction industry, most unionized workplaces in Canada are subject to the “Rand formula” – the compromise that employees are not necessarily required to join or support the union, but that union dues will be automatically deducted from the wages of everyone represented by the union.
Unions use their resources in a number of ways: In addition to the obvious, such as direct bargaining with employers and grievance resolution, unions also traditionally engage in general advocacy and education relating to labour and labour-adjacent social issues, either on their own or by supporting other labour organizations – such as, for instance, regional councils, provincial federations, and the Canadian Labour Congress – and also by contributing to issue-specific registered charities. Ultimately, these resources end up deployed to educate the public about worker rights; to participate in public discourse about legislative reform relevant to workers; to intervene on behalf of workers in legal proceedings dealing with labour rights; to employee training programs; to bring greater public awareness of industrial working conditions; and to advance worker interests in a variety of other ways.
These union activities absolutely have political dimensions to them: Advocating for legislation that protects occupational health and safety is an inherently political act, and invariably ties organized labour to some political ideologies more than others. Criticizing a public sector employer for making cuts to staffing and service levels is overtly political. Yet these types of activities are legitimately within unions’ representational mandate and have long been integral to the landscape of Canadian labour. Unions and labour organizations are uniquely positioned to advocate for workers in public discourse surrounding industrial regulation.
In the US, by contrast, laws permitting union shops and agency shops (requiring non-members to pay ‘agency fees’ instead of dues) have been interpreted by the Supreme Court of the United States as precluding mandatory dues from funding political activities. Cases like Abood v. Detroit Board of Education form the basis of the dichotomy proposed by Bill 32. (It bears noting that SCOTUS has more recently reversed Abood, finding that public sector agency shops are unconstitutional altogether.)
Bill 32 is not the first attempt to import this ‘Made in the USA’ philosophy. In 1991, the Supreme Court of Canada rejected a constitutional challenge to the Rand formula, which relied upon the American jurisprudence and argued that the Rand formula infringed the Charter freedoms of expression and association by forcing non-members to contribute to the political speech of unions: Lavigne v. Ontario Public Sector Employees Union.
In Lavigne, the SCC reviewed the American case law, and the one issue the entire court seemed to agree on was that they were all skeptical of the dichotomy between political purposes and collective bargaining purposes. Justice Wilson wrote that “the recognition of compelled contributions as constitutionally impermissible has given rise to an endless train of disputes in the United States”, and further attributed to Abooda “disproportionate weakening of the union voice.”
Justice La Forest was concerned both about the impact on union constituency of an opt-out, and of the impact it would have on the union’s ability to support causes with legitimate labour relations purposes:
As to the alternative under which the government would draw up guidelines as to what would be deemed valid union expenditure and what would not, I would first of all reiterate the point made earlier that this could give rise to the implication that union members are incapable of controlling their own institutions. This kind of paternalism would not do much for the status of unions as self-governing and democratic institutions. Just as importantly, I would draw attention to what I have already said about the difficulty of determining whether a particular cause is or is not related to the collective bargaining process. The appellant complains of what he deems to be glaring examples, but as I have tried to illustrate, many activities, be they concerned with the environment, tax policy, day-care or feminism, can be construed as related to the larger environment in which unions must represent their members. Where one chooses to draw the line will depend on one’s political and philosophical predilections, as well as one’s understanding of how society works.Justice La Forest, Lavigne v. OPSEU
Justice McLachlan similarly suggested that there was a strong argument “that to achieve their legitimate ends and maintain the proper balance between labour and management, unions must to some extent engage in political activities”. The decision in Lavigne is not a full answer to the provisions of Bill 32 under discussion: In Lavigne, the SCC concluded that the Rand formula is constitutional, but Bill 32 may force us to ask whether, and to what extent, a statute may derogate from such union security paradigms.
Freedom of Association
While this has not always been the case (and wasn’t at the time of Lavigne), we now interpret constitutional freedom of association as including robust protections for collective bargaining rights. The operative test is whether or not there is “substantial interference with the right to a meaningful process of collective bargaining.” (See Mounted Police Association of Ontario and Saskatchewan Federation of Labour.) To the extent of the activities Bill 32 characterizes as political, there’s little question that it substantially interferes with those activities. It is self-evident that the framework proposed by Bill 32 will, by design, make it more difficult for unions to finance those activities.
So the serious constitutional question raised by Bill 32 is the scope of union activities encompassed within freedom of association. The government will presumably argue that, by protecting mandatory dues in respect of “activities relating to collective bargaining and representation of members”, it complies with the constitutional standard. However, Bill 32 defines various activities as falling outside that category, and the inquiry will focus on whether those affirmative definitions nonetheless capture protected activities.
If contemporary courts are even marginally on the same page as the panel in Lavigne, as it pertains to the policy implications of an Abood-style dichotomy, then it is very likely that at least some of those ‘political’ activities will be found to engage s.2(d) of the Charter, or alternatively that the courts will find a sufficient nexus between these ‘political’ activities and the union’s representational mandate that interference with the former amounts to interference with the latter. The reasoning that led Justice La Forest to conclude that the Rand formula was reasonably justifiable will likely be relevant to a consideration of the contemporary scope of s.2(d):
But [the balance of power between management and labour] is also in part a product of more general factors, such as the prevailing public sentiment as to the importance of unions or the state of the economy. It is also a product of the state of government legislation and policy, most obviously in the area of labour relations itself, but also in regard to social and economic policy generally.Justice LaForest J., Lavigne v. OPSEU
If, in 1991, the American example did not illustrate a worthwhile role model of empowering workers to pursue collective goals, the example is even less helpful today, with union representation rates that have continued to decline to the point that barely more than 10% of American workers were represented by a union as of 2018 – and only 6% in the private sector. The SCC’s skepticism about the Abood dichotomy, while not essential to its disposition of Lavigne, has been vindicated and reinforced over the decades since. There is simply no compelling reason to think that courts today would not find the reasoning in Lavigneto be persuasive.
Freedom of Expression
As well, there are likely to be ‘freedom of expression’ issues raised: In effect, the government is imposing procedural and substantive restrictions on how unions can finance political speech. Imagine if they tried to similarly constrain private industry’s use of its revenues toward political speech. This would be obvious overreach. The difference here, the government will likely argue, is that a statutory regime enables mandatory dues payments: When the government is mandating a certain payment, there is some logic that they would be able to attach strings that make the payment politically sterile.
This argument can’t hold, however, given that Bill 32 also encompasses dues and initiation fees that do notarise out of the statutory entrenchment of the Rand formula in s.27(5): In cases where individuals agree voluntarily to join unions and pay fees, Bill 32 steps in to impose additional procedural and substantive constraints on the union’s engagement in political activity with those funds.
It is unlikely that infringements will be justifiable under s.1 in this case. Even the very objective of the legislation is dubious: The stated objective will be to promote ‘employee choice’, but in the context of a majoritarian system such as our model of labour relations (or, for that matter, our system of government), there is no established paradigm that individuals should be able to object to the use of their money for objectives they don’t support.
But even if ‘employee choice’ gets over the threshold of a ‘pressing and substantial’ objective, it faces a much higher obstacle in proportionality: If a court accepts that some or all of the defined ‘political’ activities are integral to a union’s representational activities, it is a near-certainty that the constitutional protection of meaningful collective bargaining will outweigh the legislative objective in promoting individual choice. This question is very close to, if not the same as, the proportionality analysis in Lavigne. Likewise, the provisions, as drafted, are far from minimally impairing. The overbreadth of the definition of political activities is obvious, and an ‘opt out’ system (instead of ‘opt in’) would have equally preserved employee choice while presumably having a less dramatic impact on those activities.
The most fundamental problem with Bill 32’s approach is this: Its general premise, that unions can be reduced to apolitical creatures without meaningfully impacting their core s.2(d)-protected functions, ignores the full historical and contemporary context of the labour movement in this country. Simply, as the SCC recognized in Lavigne, the politics are – to some extent or another – an essential part of Canadian labour relations. The Abood dichotomy is a false dichotomy, and attempting to strip unions of their political existence cannot help but erode the ability of workers to pursue legitimate collective purposes. While every reasonable expectation is that Bill 32 will pass, we can also reasonably expect contentious litigation of its constitutionality, and there is good reason to think that there will be merit to some of these challenges.
Dennis Buchanan, “Restricting a Union’s Political Activities: The Constitutionality of Alberta Bill 32” Canadian Law of Work Forum (July 27 2020): http://lawofwork.ca/?p=12906