Are Ontario Laws on Union Dues and Membership 'Undemocratic'?

Originally published April 3, 2013
The Ontario Conservative Party has promised, if elected, to do away with what they keep calling “forced unionism”. We don’t know the details of the law, but  they have inferred they’d pass a law that bans a collective agreement from including a clause requiring employees covered by the agreement to pay union dues or to become a union member.  Collective agreements (outside of construction) that require union membership are relatively uncommon.  Union dues deduction clauses, on the other hand, are the norm.  They require the employer to deduct union dues from all of the bargaining unit employees, in the same way that employers deduct all sorts of other amounts, such as fees towards health, dental, and pension plans. The employer then forwards the dues to the union. The Conservatives want to cut off that flow of money to their political opponent, the labour movement.
The idea of weakening unions by cutting off their revenue flow is as old as collective bargaining itself, despite the Conservative’s claim that they want to ‘modernize’ labour law. To be historically accurate, their ideas owe more to the 1920s than any progressive vision of the future.   Banning union dues clauses is an idea taken from the deep southern U.S. Republican states of the 1930s and ’40s where, to put it mildly, unions weren’t (and still aren’t) welcomed.
Let’s take a quick cross-Canada look at the laws that regulate union dues and union membership.  Here is a chart describing the laws, in case you are interested.  The summary deals only with the non-construction sector, which is most of the economy and the real target of the Tories.  The construction sector has different rules and models and needs to be considered separately.
This is what it shows:
In Ontario, there is no statutory law requiring union dues be paid, and no law requiring employees to become union members. Whether either requirement exists depends on collective bargaining and how a majority of employees vote.  A collective agreement can only come into existence if it is approved in a mandatory secret ballot ratification vote.  This means that a mandatory dues or membership clause can only exist because it was approved in a majority vote of employees affected.  This is also true of every other term in the collective agreement, except a few terms that are specifically required to be included in every collective agreement, like a no strike clause and a mandatory arbitration clause.
The only thing that is unique about union dues clauses is that the law presently says that it is up to the union and the employees to decide if they want a dues checkoff clause.  The employer cannot resist if the union proposes the inclusion of a union dues clause in the collective agreement.  This provision (Section 47) was introduced by a Conservative Government in the 1980s tired of labour disputes over union dues clauses.  Hence, the Tory claim that the laws they want to change “date from the 1940s” is not accurate.  There is no law in Ontario on union dues that dates from the 1940s, though I guess you could claim that the idea that employees protected by a collective agreement should pay their fair share of the dues that go towards funding the union’s services was legitimized in Justice Rand’s 1946 interest arbitration award in the famous Ford decision.
So, for example, imagine a union bargains a health or pension plan with the employer that requires employees to pay dues, premiums, or a fee towards the cost of those plans.  This is very common, and one of the big benefits of being unionized–unionized employees have far better health and pension plans in Canada than nonunion employees. The requirement to pay a fee towards the cost of a health and pension plan goes into the collective agreement.  The law requires that agreement to be put to a majority vote of employees, and if the vote is in favour of the agreement,  then all employees must pay the health and pension plan contributions, regardless of whether they supported the union, the collective agreement, the health or pension plan, or the requirement to contribute.  The employer will deduct these dues from the employees’ pay.  This is the exact same situation with the requirement to pay union dues.

Therefore, we can only say that employees are ‘forced’ to pay union dues if by that we mean subjecting people to a rule approved by a majority is a form of force or coercion.  If that is the case, then not only is our entire model of labour law illegitimate, then so too is our entire democratic process.  Both systems are based on the idea that majoritism is an appropriate model for making decisions that affect collectives.  If it is improper for a majority of employees to approve a rule requiring all employees to pay union dues [or health or pension premiums] for the services and benefits they all receive from the union, then so too is it improper for Canadians to be forced to pay taxes to a government they didn’t vote for, or to obey a rule with which they disagree passed by an elected government.
Indeed, collective agreements are more democratic than political elections when there is higher employee turnout than is the case in our sad political system these days.  The Harper government won a majority in the last election even though only about 24% of Canadians actually voted for them.  The Ontario Liberals won the last Ontario election by persuading only 18% of Ontarians to vote for them.  Provided people have the opportunity to vote on issues that affect them, we accept as democratic the outcomes of ballots.

Here’s a quick overview of the rest of the country.
The Federal jurisdiction and Newfoundland & Labrador have a similar model to Ontario, with the exception that there is no legal requirement for a collective agreement to be ratified by a majority of employees.  If the union requests a union dues clause, then the employer cannot fight about this.  Whether or not there is a mandatory union membership clause is up to the parties in bargaining.  In theory, a union could bargain a mandatory dues and membership clause without subjecting it to a ratification vote.  In practice, most unions put collective agreements to an employee vote even when the law does not formally require it.
In Alberta, British Columbia, New Brunswick, and Nova Scotia,  mandatory union dues and mandatory membership clauses are permitted to be bargained, but they are not required by law.  However, dues can only be deducted from an employee’s pay cheque if the employee signs an authorization requiring this.  Once an authorization is submitted to the employer, the employer must abide by it and deduct the dues.
In Prince Edward Island, a collective agreement may include a mandatory dues provision, in which case the employer must deduct the dues and submit them to the union.  However, if there is no mandatory dues provision in the agreement, then dues can only be deducted by the employer if the employee signs an authorization ordering the employer to do this.
The strongest union security provisions are found in Saskatchewan, Quebec, and Manitoba.  In Saskatchewan,  if a union so requests, the collective agreement must include both a mandatory union dues and mandatory union membership clause.  In Manitoba and Quebec, union dues are mandatory by virtue of the statute.  Thus, these two provinces are the  only jurisdictions in Canada that actually have ‘forced union dues’, in the sense that the law demands it.  Mandatory membership is permissible in both provinces, as it is every where else in Canada.  However, as in Ontario, no collective agreement can come into effect in Manitoba unless it has been approved by a majority of employees in a secret ballot.  Therefore, in Manitoba, like in Ontario, if a majority of employees do not want to pay union dues, they can refuse to ratify a collective agreement and decertify the union.
Issues for Discussion
In Canadian labour law, employees can only get access to collective bargaining if a majority of their coworkers also select this option.  This ‘majority’ requirement is unusual by international standards.  Employers (and even Conservatives) like this majority requirement, because it makes unionization more difficult.  That is why Conservatives and employers usually support employee strike votes, certification votes, and collective agreement ratification votes.  All are based on the idea that a majority of employees should be able to make rules that apply to all of the employees.  Yet Conservatives do not think that the majority should be able to approve a rule requiring all employees to pay an equal share towards the cost of bargaining and administration of a collective agreement.
One option is do away with the majoritism principle altogether.  Anyone who wants collective bargaining and union representation can have it.  That would deal with any concerns about ‘forcing’ employees to pay union dues.  The employer has to bargain with those employees who choose to be in a union, but other employees can continue to remain nonunion.  That is the way most of Europe works.
Should Canadian politicians move towards this model of ‘minority unionism”?
Do you think employers would support doing away with the majority requirement in Canadian labour law altogether?  Why or why not?