Written by Fred Wilson
“There is much discussion today in labour law circles about the need to move beyond the Wagner Model of enterprise-based bargaining towards broader-based collective bargaining schemes, such as sectoral bargaining. However… labour law reform is unlikely to come by means of a sudden legislative tsunami that sweeps nearly 80 years of Wagner Model practice and memory and replaces it with something entirely different.”
“The only thing we can say with strong confidence is that the Wagner Model is nearing the end of its shelf life. Every century reinvents its labour laws, and we are 80 years into a Model that now only reaches 10-15 percent of private sector workers in Canada and the U.S.. Change is coming.”
These are two conclusions by Professor David Doorey, taken from the introduction and conclusion of his new essay “David Beatty’s Redemption (And Other Thoughts on the Future of Labour Law)” (Forthcoming in the University of Toronto Law Journal).
The limitations of the Wagner model for collective bargaining were understood decades ago, as the debates cited in Professor Doorey’s essay show. But if “change is coming” to a labour relations system anachronistically out of sync with the realities of 21stcentury workplaces, it is worth asking to what extent the Wagner framework has been a determining factor in bringing Canadian labour relations to this place? What weight should be attributed to the ideological biases and decisions of law makers, adjudicators and union leadership when choices were before them? In my experiences with some of the disappointments and lost opportunities in labour law reform, the divisions, ambivalences and short-term interests in the labour movement cannot be underestimated in shaping outcomes.
Certainly the most recent stab at a systemic reform produced very little of lasting significance. The Changing Workplaces Review in Ontario set out to drag labour relations into the 21st century and raised hopes when it put sectoral bargaining on the agenda. The conclusion in the final recommendations of the CWR that sectoral bargaining was just “too large a step” was obviously political as it defied the main body of research and findings of the process. The CWR Advisors, John Murray and Michael Mitchell, did their best in an interim report to set up a larger set of reforms. However sectoral bargaining rights went too far for the LIberal government of Ontario under pressure from the Ontario Chamber of Commerce and particularly its retail and hospitality sections.
But the decision to drop sectoral bargaining was a relatively easy one because of an absence of countervailing pressure from the provincial NDP not willing to throw its weight behind a Liberal labour law reform process, and a less than inspired response from organized labour. The first submission to the CWR from the Ontario Federation of Labour did not advocate broader based bargaining and it was only after the CWR Interim Report laid out no less than 8 sectoral bargaining options, and with extensive coaxing from labour lawyers close to the process, that the OFL came out in support of broader based bargaining in the private sector.
The politics and assumptions over what goes too far for worker rights can be counted on to recur whenever change is on the agenda. Usually it is said that large scale reforms are not sustainable, but in Ontario even the much less substantial reforms that were part of the Liberal government’s package proved to be no more resilient and almost all were repealed by the new Conservative government promptly after the 2018 election.
The central role of unions and their political allies in determining possibilities has perhaps been seen best in British Columbia, a crucible of these factors since the 1973 BC Labour Relations Code was written and implemented by an NDP government, famously aided by Paul Weiler. It is remembered less that the NDP Labour Code, seen by some as a high water mark for worker rights in Canada, was actually a disappointment to a militant labour movement that represented over 40 percent of the work force, defied injunctions, boycotted the government’s Mediation Commission and set a historical record for strike actions in 1970 – a year described as a “forest of picket signs.”
The BC Federation of Labour expected better from the province’s first NDP government and opposed the new Labour Code over its prohibition of “organizational picketing” and secondary picketing beyond narrowly defined allied employers in a labour dispute. Neither was the BC Fed in agreement with provisions providing for compulsory arbitration, or opt-out provisions for religious objectors that were seen as the seeds of right to work legislation. Although later remedied, the 1973 Code excluded fishermen and agricultural workers. The first BC Labour Relations Board was another disappointment. A prescient comment in the BCFL analysis on Oct 2 1973 described the Board appointments as “placing the fate of working people in the hands of a Labour Relations Board dominated by professional people and employer representatives.”
If the Wagner model certified unions at an enterprise level, organizational picketing and the BC Federation of Labour’s “hot declarations” extended solidarity across workplaces and sectors. For BC Fed President Ray Haynes and his successor Len Guy these were matters of principle and an expression of how they understood class conflicts. However, these principles went too far for the NDP of 1973. And they were not important goals for key sections of the labour movement. Notably, Teamsters and the International Woodworkers of America publicly contradicted Haynes.
After a lengthy exclusion from power, the next NDP government returned to labour law reform with its 1992 review chaired by Vince Ready. The now celebrated majority recommendation on sectoral certifications covering geographic labour markets for small workplaces in under represented sectors – the so called Baigent-Ready proposal– was once again too far for the Mike Harcourt government because the recommendations also included an anti-scab law. Both proposals were drafted as legislation ready for enactment, but the two major reforms would not be accepted regardless of the merits. Labour had to choose one and it decided to take anti-scab and leave sectoral certifications on the table. The BC Federation of Labour executive’s fateful decision was never openly debated among union members, and the back story to it was informal knowledge passed by word of mouth through a narrow slice of union activists until the recent account by Sara Slinn in her important historical review of sectoral bargaining proposals published this year. 
Two years later another crucial choice between enterprise and broader based bargaining arose when the BC pulp and paper industry unilaterally decided to end over 40 years of industry bargaining with its two pulp and paper unions, the Communications, Energy and Paperworkers Union and the Pulp, Paper and Woodworkers of Canada. Despite rivalries, the two pulp unions had for decades bargained jointly for a single industry wide collective agreement. When the industry decided to dissolve its accredited bargaining group and revert to company or mill levelbargaining, the unions scheduled a strike vote to defend industry bargaining. The employers turned to the BC Labour Relations Board in a case known as the “Northwood decision” claiming that a matter of bargaining format could not be taken to impasse.
In this case, the unions were not ambiguous or lacking solidarity and were ready to strike. They did not seek a decision to force the industry to retain industry bargaining, but merely the upholding of their right to apply economic pressure on the industry which may well have reconsidered its position short of a strike. Disappointment was delivered by Stan Lanyon, a former union lawyer appointed by the NDP to the chair of the BCLRB. Wagnerism was not at issue as Lanyon’s decision acknowledged that the right to strike over this issue was permissible in the 1973 Code and had remained so until a decision the year prior concerning North Vancouver school board workers. The unions and their counsels, including John Baigent, argued strongly that “any subject which may legitimately be in a collective agreement or the subject of collective bargaining may be taken to impasse.”
However Lanyon was unmoved and declared the strike vote illegal. The Northwood decision did not break solidarity among pulp and paper workers who went on to develop an effective pattern bargaining system. It did allow one of the last important industry bargaining relationships to disappear without a fight, and it entrenched enterprise bargaining on the basis of a very limiting and conservative doctrine that collective bargaining can only be pursued for objectives that are provided for in existing labour legislation.
Of course the Wagner model in Canada has been shaped by countless struggles and occasions. It is not coincidental that the most stable unionized sectors are the public sector and the construction industry which provide for forms of sectoral and industry bargaining. But these acceptable Canadian bargaining regimes have been consistently denied to a growing majority of private sector workers who are excluded from any practical exercise of their right to organize.
What the few events noted here have in common is that pivotal outcomes were not predetermined by the rigidity of a bargaining model. Politicians, including the political allies of unions, bear the responsibility for outdated labour laws. Professional adjudicators who hold “the fate of working people” in their hands have also failed when choices were before them.
Not least, the unity, visions and demands of union leaderships have been key elements determining possibilities and outcomes. The reluctance of union leadership to embrace sectoral bargaining for BC private sector workers in 1992 echoed through the Ontario labour movement 25 years later. These attitudes and priorities are matters that the labour movement hold in its own hands and surely are crucial to the change that is coming.
Fred Wilson is the retired director of strategic planning at Unifor and author of a new book entitled A New Kind of Union: Unifor and the Birth of the Modern Canadian Union
Fred Wilson, “Disappointing Labour Law Reforms and What Unions hold in Their Own Hands” Canadian Law of Work Forum (September 3 2020): http://lawofwork.ca/?p=12996
Ontario Changing Workplaces Review Interim Report, Special Advisors John Murray and Michael Mitchell, July 2016. A few unions did make substantive proposals for BBB, notably Unifor, USW (which argued for the Baigent-Ready model in response to the Interim Report) and ACTRA which called for a provincial version of the federal Status of the Artist Act.
Rod Mickleburgh, On the Line: A History of the British Columbia Labour Movement,Harbour Publishing, 2018
Labour Code can only stoke fires of unrest, Vancouver Sun, October 2, 1973
Teamsters Attack BC Fed for opposing labour bill, By George Dobie, Vancouver Sun October 3, 1973
Sara Slinn, Broader-Based and Sectoral Bargaining in Collective-Bargaining Law Reform: A Historical Review, Labour – Le Travail, Vol 85, 2020. Slinn’s historical account based on interviews with key participants shows that the BCFL Executive was divided over sectoral bargaining with some union leaders fearful of the impact on their perceived interests. Anti-scab was chosen over sector bargaining by a one vote majority.
British Columbia Labour Relations Board S. Lanyon, Chair J.B. Hall, Associate Chair (Adjudication) M. Giardini, Vice-Chair, Northwood Pulp and Timber Limited (“Northwood”), (1994) 23 CLRBR (2) 298
Lanyon wrote in his decision : “The current Labour Relations Code does not contain any express provision for multi-employer certification. The Unions are essentially seeking a bargaining format which the Legislature has not seen fit to continue…” In his analysis, Lanyon cited the “Doctrine of illegality”: “the principle inherent in the “illegality” doctrine is that the process of collective bargaining must be consistent with the Code… The importance of a proposal, in terms of “self-interest” and the willingness to resort to economic sanctions, cannot alone be the test of good faith. Public policy has restricted private industrial disputes, and the statute balances free collective bargaining with industrial stability…”