Written by David Doorey, York University
I’m on the Advisory Board of an initiative known as the Ontario Assembly on Workplace Democracy, which is considering options for labour law reform in Canada. The idea is to explore ways that law might facilitate collective worker voice below the level of majority, certified trade unions. Recently I joined the Assembly to discuss a topic I’ve been writing about for many years, which we can call “Micro Labour Law’. Watch the short video below.
By way of very brief background, in Canada, the legal right to participate in collective bargaining is only available to most Canadian workers if a majority of their co-workers also wish to engage in collective bargaining through a single trade union. That’s because the Canadian ‘Wagner Model’ developed in the 1940’s is based on the idea of majority rules and exclusive trade union representation. So, for example, if workers at a workplace with 500 employees decide they would like collective bargaining rather than the model on which the employer unilaterally determines working conditions, they can only get collective bargaining if they can prove to the government that at least 251 of the employees want to be represented by a single union. If 250 or fewer employees want collective bargaining, then none of the employees can have it.
That model has the benefit of encouraging employees to build up bargaining power by avoiding fragmentation, but it has the downside of making it very difficult for workers to ever access collective voice and bargaining. Presently, only about 15 percent of private sector workers in Canada are covered by collective agreements. It is no wonder we are witnessing a sustained growth in income inequality. Canadian workers are suffering from a lack of bargaining power which permits corporations to syphon income up from the workforce to executives and shareholders and to record huge profits while working Canadians fall further and further behind.
The problem is exasperated in Canada by the lack of a legally protected ‘right to associate and to act collectively’ at work. As I have explained in articles dating back to 2013, the lack of right to associate in Canada is a glaring omission in our law that can no longer stand. We cannot claim to protect freedom of association (which by the way is guaranteed by the Charter of Rights and Freedoms) if workers can be fired for the simple act of associating. For example, in Canada, workers can be fired for approaching their employer as a group and complaining about working conditions, or even for discussing their wage rates with one another. This is insane, to put it in laypersons’ terms. Canadian governments need to introduce a free-standing ‘right to associate and to act collectively’, similar to the legally protected right to engage in concerted activities in the United States.
I explain all of this in these two papers, if you are interested:
Graduated Freedom of Association: Worker Voice Beyond the Wagner Model (2013) Queens Law Journal
Reflecting Back on the Future of Labour Law (2021) University of Toronto Law Journal
Micro Labour Law refers to reforms that provide legally protected rights for workers to act collectively below the level of majority, government certified trade unions. For me, a right to associate and act collectively is an essential foundational labour right that Canadian governments need to legislate. What the full scope of that right should be is a matter of debate–Does it include a right of non-union workers to strike, for example? The question of non-majority collective bargaining and what that would look like in practice is more complicated than I can go into in this short post (though I do discuss these issues in more detail in the two articles linked above).
In this short video, I simply present the subject matter of Micro Labour Law to the audience considering possible labour law reforms. As always, I’m interested in your ideas.