Update: I’ve received some interesting comments and emails about this post, so I am posting some of that discussion at the bottom of the post, in addition to the comment sections. Thanks for the comments and analysis.
I’m working on some papers for two conferences I have coming up at Western and then Osgoode Hall, and one issue I’m sorting through is the current state of the law as regards to nonunion employee associations and the Charter right to collective bargaining that the Supreme Court has been developing in recent years. While its on my mind, I thought I would throw out an issue for consideration.
Most Canadian workers have no practical or safe way to exercise their Charter right to collective bargaining as developed by the Supreme Court in recent decisions. Does that mean that the legal system is deficient?
Imagine this is a question on a law school labour law exam:
There is a Starbucks store with 50 employees. It is nonunion. Some of the employees decide they would like to bargain collectively with the employer about terms of employment, but they do not want to join a “real” union. Instead, they would like to form an employee association and
elect a representative to speak for the employees in discussions with the employer. In fact, surveys show that a large majority of workers want just this: collective employee representation, but a less adversarial form than traditional union-management relations. Of the 50 employees, 25 are interested in this idea and form a new Starbucks Employee Committee, and they elect John Smith to be their spokesperson. John approaches the owner, gives him a list with the 25 names, tells him that he has been elected as the representative, and asks to begin a process of bargaining over working conditions. The owner responds by firing all 25 employees, giving them the required amount of notice required by their employment contracts.
Has the employer violated any law?
What do you think?
Some factors to consider:
- If these workers were agricultural workers in Ontario, then the answer is easy. The employer would be in violation of the Agricultural Employees Protection Act, the statute the Supreme Court recently upheld as constitutional in the case Ontario v. Fraser. That statute provides protection against discrimination for joining an employee association and attempting to engage in collective representations with their employer. Notably, the AEPA protects a right of workers to make collective representations to employers regardless of the size of the collective and regardless of whether the association the workers joined is a recognized “trade union”. In other words, unlike collective bargaining under the normal Labour Relations Act model, the AEPA does not envision majority unions or even “trade unions” at all. There can be multiple employee associations, each representing only a small percentage of the workforce, and no unions.
- However, Starbucks employees are not agricultural workers, so the AEPA does not apply. The process is governed by the Labour Relations Act. The LRA protects employees who are trying to organize a “trade union”. A trade union, as interpreted under that statute, is a real trade union–like the Canadian Auto Workers or the United Food and Commercial Workers–with a constitution, an elected executive, et cetera. In our exam question, there is no “trade union” on the scene at all. Therefore, it is hard to see how the unfair labour practice sections, like section 70, 72, and 76 apply, which all protect employees from discrimination on the basis that they support a “trade union” or are a member of one, of because they are trying to organize a “trade union”.
- If the Labour Relations Act does not prohibit the Starbucks employer from firing employees for trying to exercise their Charter right to engage in collective bargaining with their employer, and the AEPA doesn’t apply, then is there any other law that makes the dismissals unlawful?
Analysis
My own belief is that Starbucks has not violated any Ontario law. Am I wrong about that?
If I am correct, then this shows how strange our approach to protecting freedom of association is under our Supreme Court’s vision of the Charter. The Court has told us that Section 2(d) of the Charter (Freedom of Association) protects: a right of citizens to form and join associations, to make collective representations through that association to their employer, and to have their employer consider those representations and discuss them in good faith (Fraser). It may also now include a right of workers to strike, if the recent Saskatchewan ruling holds up on appeal.
However, as the law now exists in Ontario, employees can be dismissed for forming an employee association and seeking to exercise their Charter right to engage in
collective bargaining, unless the association they join is a recognized “trade union”, or they are agricultural workers. Moreover, in Ontario, there is presently no legal mechanism available for workers governed by the Labour Relations Act (most people) to enforce the Charter right that requires employers to listen and discuss collective representations of employees in good faith, unless the employees have joined a “trade union” that has been certified (or voluntarily recognized by the employer). In that case, the statutory duty to bargain in good faith would apply. But a “trade union” can only get certified if a majority of employees vote for this. This means that the 25 Starbucks employees who wish to make collective representations to their employer have no legal means to make their employer respect their Charter right to collective bargaining.
So, to summarize, while the 25 Starbucks employees have a Charter right to associate into an employee association and make collective representations to their employer, and to have those representations listened to by Starbucks and discussed in good faith, and (possibly) to go on strike, in fact, they can be terminated for trying to exercise these rights. Even if the 25 workers join a “trade union”, neither they nor their union have any legal means to force Starbucks to recognize their Charter right to collective bargaining, since the “trade union” could not get certified with only 25/50 employees supporting the union. In short, Starbucks is completely free to ignore its employees Charter rights to deal with their employer collectively.
That is a pretty weak Charter right, don’t you think?
The question created by the Supreme Court in Dunmore is whether the exclusion of workers from a protective labour relations regime has the effect of “substantially interfering” with the exercise of the Charter right to collective bargaining. Agricultural workers have a protected right to form minority employee associations and make representations to their employers, but oddly, workers covered by the LRA do not. Does that mean we could now turn Dunmore on its head, and argue that that the exclusion of retail workers from the AEPA’s protection for non-majority collective bargaining ‘substantially interferes’ with their right to form employee associations and make collective representations outside of the formal majority unionism model envisioned by the LRA?
An obvious fix for this solution would be to extend the framework in the AEPA to all workers governed by the Labour Relations Act. That would mean that employers would be restricted from retaliating against employees who form associations or seek to make collective representations, and would need to bargain collectively in good faith (within the limited scope of that requirement defined by the Court) with any group of employees that approaches them, regardless of whether a “trade union” is involved and even if the association does not represent a majority of the employees. If the Supreme Court follows its own direction to interpret Section 2(d) to provide at least the level of protection provided under ILO Convention 87, then we would be headed also towards recognizing a right of employees to strike, even when they are not represented by a “trade union” that has been certified according to majority rules.
In short, are we heading towards a model that provides the 25 Starbucks workers a right to collective bargaining and strike, even though they are not members of a certified trade union? Seems a stretch, but the logic of recent Supreme Court decisions is consistent with this path.
Discussion
Chris:
A lot of the recent US Labour Law decisions on social media focus on the NLRA’s protection of concerted activity, even when there’s no union involved. I’ve become interested in this topic, and I wonder why the idea of protecting concerted activity in non-union environments has not been imported into Canada. Amending Canadian legislation to protect concerted activity in a manner similar to the NLRA might be an answer that protects the Charter right without creating “real” minority unions. I don’t know. I’m just beginning to think about this topic.
OR (a more limited proposal) Why not interpret the common law to be consistent with Charter values and Canada’s international law obligations by characterizing dismissal for engaging in collective activity as bad faith dismissal, attracting additional damages? Or interpret the common law to be consistent with Charter values/international law by implying a term into the common law employment contract that employees cannot be dismissed for associational activity?
Julia:
It seems arguable based on Health Services (i.e. paras. 97, 98, 101, 104) that if this was a government employer, to which the Charter applied, the members of the employee association would have a cause of action under s. 2(d) of the Charter, against the government employer for breaching its duty to recognise the association and negotiate in good faith with the employees – which, as we know from Fraser (i.e. paras. 40-41) inheres in 2(d) independent of any statutory apparatus (i.e. statutory certification).
Its obviously more difficult for the private sector employees because the Charter doesn’t govern the actions of the private sector employer(note: unless they were here in Saskatchewan, where freedom of association is actually guaranteed to these workers under the Human Rights Code (s.6)). I would suggest that the Starbucks employees would have a common law claim in wrongful dismissal, to the extent that a Court might be prepared to agree that it was improper to fire the employees for exercising their common law, Charter right to associate, based perhaps on the “Charter values” argument established in Dophin Delivery [1986] 2 S.C.R. 573 and Pepsi Cola [2002] 1 S.C.R. 156 recently applied by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32. How hard would it be to convince a court that this constitutes “bad faith” or “harsh” conduct that would justify an award of Keays-type “moral” damages?
David (Me):
Thanks Chris and Juliana, I agree that firing someone for trying to exercise their Charter rights could be considered bad faith in the manner of dismissal under the Keays/Wallace analysis, but that doesn’t get you much. Because of Keays, the workers would have to prove actual physical/medical harm resulted because they were fired for exercising their Charter right in order to get anything. But even then, they have still lost their job, which is really the point I’m making. What good is a Charter right to associate in order to influence employment practices is the employer can just fire you for trying to exercise it. Seems pretty stupid. It seems to me that, after Fraser and B.C. Health, it must be the case that the state must provide protections to enable nonunion workers to associate and make collective representations without fear of being dismissed. In other words, while the state needn’t provide all workers with the full gambit of rights in the LRA, all workers must be given at least what the AEPA provides agricultural workers. Otherwise, there is no effective right for nonunion workers to do any of the things that the Charter now says they have a right to do. Governments should follow the Court’s statement in B.C. Health that “labour policy“, in addition to common law doctrine, should reflect Charter values.
Bob:
Harcourt, M. and Haynes, P. (2011). Accommodating minority unionism: Does the New Zealand experience provide options for Canadian law reform? Canadian labour & employment law journal. 16(1): 51-80. provides an interesting discussion of minority unionism.
Seems to me the issue is that the Ontario LRA defines union narrowly. In this scenario, is it in violation of s.2(d) of the Charter because it fails to protect legitimate collective activity? Not that such a finding (potentially years in the future) helps the 25 employees who got canned in your example.