I attended a great conference this weekend at Osgoode Hall Law School with some of the leading labour lawyers and academics from Canada, the U.S., and Britain. The conference was entitled “Voices at Work”, a theme devoted to a conversation about how law can facilitate worker voice and
participation in important workplace decisions. My paper was called “Governing and Regoverning the Workplace”.
It considered how Canadian law protects nonunion employee associations, employees who join together without the assistance of a “trade union”. The answer is that our law does not protect them at all, and gives the association no rights whatsoever.
The Ontario Labour Relations Act only protects a very narrow type of employee association: “trade union activity”. Read section 70 and ask yourself whether the protections against employer interference apply when there is no “trade union” involved. Employers have no legal obligation to discuss, bargain, negotiate, or even listen to an employee association that is not a “trade union”, even if 100% of the employees support the association. And of course, there is no protected right of nonunion employees to strike in Canada. Ever.
This is very different than in the U.S., for example. There, the NLRA prohibits employer reprisals against employees for exercising any type of associational activity, not just ‘trade union’ activity, and employees who form a nonunion employee association have the same legal rights to strike as unionized workers. Canada’s basic labour laws have perhaps the narrowest legal definition of employee association in the Western world.
But here is the really weird thing: The Supreme Court of Canada has now ruled that the Charter guarantees the right of all employees to associate, to make collective representations to the employer, and to have those representations considered in good faith, which might include ‘negotiation’ with the association (see B.C. Health Services and Fraser). Yet most non-union workers have no legal protections for any of those rights, unless they form or join a “trade union” that represents a majority of workers and can obtain certification after a heated contest and ballot.
Therefore, I argued that governments should move labour policy into compliance with Charter values by extending the rights guaranteed in Fraser and B.C. Health Services to all employees. Check out my chart.
Graduated Freedom of Association Model
I argue that governments should extend the basic principals in the much-maligned Agricultural Employees Protection Act to all employees. If the Charter guarantees employees a right, then the provincial law should protect the effective exercise of that right. This means that all employee associational activity should be protected from reprisals (not just ‘trade union’ activity), and the law should ensure that collective representations presented to the employer by an employee association are considered in good faith, whatever that duty turns out to mean as we sort out what Fraser means. These are the legal rights conferred in the AEPA model.
All the ‘thinner’ associational rights listed in sections A and B of the Chart should be protected by the Labour Relations Act, since they are guaranteed by the Charter, even if some employees might also be able to access the ‘thicker’ rights in section C of the Chart.
I make several reform proposals to bring this model into effect. The AEPA model needs some revisions to make it more effective. For example, one change needed to the AEPA model is that the identity of employees who have joined the association must be confidential, just as the identity of union members is not disclosed to an employer under the OLRA.
I think this is the direction the SCC is leading us anyways. If the Charter guaratees a right to form an association and make collective representations to an employer, why should homeworkers and retail workers only have protections to exercise these rights if they are able to form a majority, certified “trade union”? It no longer makes any sense to link Section 2(d) associational rights solely to the institution of majority trade unionism. In fact, I think a strong argument can already be made post Fraser that the OLRA model is ‘under-inclusive’, because it protects only associational activity exercised through one form of association: “majority trade unionism”.
The new model will introduce the concept of minority employee associations and minority trade unionism into Canada. Employers will be required to discuss (and perhaps negotiate) with any employee association one or more employee joins, as is required now under the AEPA model. Whether employees in non-majority employee associations will have a right to strike is an issue that may be addressed in upcoming cases that raise the Charter right to strike.
The real question is whether this will be useful to workers or not? I have some thoughts on that, which will be fleshed out more in my final paper.
Thoughts, comments, or criticisms welcome.