Getting It Right About Canadian Unions’ Rights

The Canadian Constitution Foundation (CCF) is a Calgary-based organization that bills itself as “Freedom’s defense team”. Although the CCF claims it is “non-partisan” and “politically neutral”, the legal cases it undertakes have a common theme of anti-government-regulation  – cases involving challenges to the Canadian health care system, challenges to government food safety regulations, and challenges to aboriginal self-government.

With that questionable record of “neutrality”, I guess I shouldn’t have been too surprised by a column written by Karen Selick, the CCF’s litigation director, which strongly criticized Canadian unions for allegedly having a “battery of privileges that should have no place in a free society“.  Well, expressing a strong opinion is one thing. Using selective and misleading information to support that opinion is another thing altogether.

The context of Selick’s anti-union diatribe is a case currently being considered by the Supreme Court of Canada. The case was brought by the Saskatchewan Federation of Labour (SFL), which argues that two laws passed by the Saskatchewan legislature in 2008 infringe on the “freedom of association”  guaranteed in the Canadian Charter of Rights. The dispute between the SFL and the province of Saskatchewan centers on two questions:

  • whether the definition of “essential services” in one of the laws is so broad as to potentially take away any public sector worker’s ability to go on strike; and,
  • whether the other law’s change to the requirements for union certification make it unnecessarily difficult for a worker to join a union.

(A number of groups have been granted intervener status in the case, meaning they have the right to provide the court with their perspectives on the issue being heard. The CCF is one of those groups.)

Selick starts her attack by claiming, “Unions have the state-granted power to interpose themselves between individual workers and their employers, even when some of the individual workers don’t want the union involved”. To call this a mischaracterization of how unions work in Canada would be generous. Workers in Canada have the legal right to choose a union as their collective representative in the workplace. And workers make this choice through a vote – in other words, the same way that Canadians choose their Member of Parliament, or their representative in their provincial legislature. If we applied Selick’s logic (or lack thereof) to Canada’s democratic system of government, Canada should immediately dissolve Parliament, and the provinces should also dissolve their legislatures, because not every voter voted for the member that represents them in those bodies.

Selick then asserts: “Once a union has been certified for a workplace, all employees in the bargaining unit are forced to contribute part of every paycheque to the union, even if they choose not to join.” Yes, and there’s a reason for that. A union works on behalf of all members 0f the certified bargaining unit, and every member of the bargaining unit benefits from that work – for example, in having a collective agreement in place to define and enforce their workplace’s policies, and in having an advocate on their side in a workplace dispute. The very reasonable idea that you should pay for services performed on your behalf is the basis of what Selick dismissively refers to as the “notorious” Rand formula  – a formula which, despite its alleged repression of worker freedoms, has been a functional part of most Canadian labour law since the mid-1950s.

The Supreme Court of Canada building in Ottawa. (credit: Wikipedia)

The Supreme Court of Canada building in Ottawa. (credit: Wikipedia)

What next? Oh, yes, “[t]he unions can spend the incoming dues on projects utterly abhorrent to the employees whose pockets were picked, and the employees can do nothing about it.” This statement is wrong. Employees can actually do something about “it” – they can do quite a lot. They can get involved in the union – by attending meetings, by participating in union activities, by running for office – and thus be involved in setting the union’s budget allocations and its policies. If they choose not to get involved in the union’s activities, then they shouldn’t complain about how their union dues are spent. This point was made very clearly in the Supreme Court of Canada decision in the Lavigne case – a decision that Selick characterizes as “bizarre”. But she makes an even more bizarre statement: “These points [in the Lavigne decision] may be true, but they’re irrelevant.” No point in letting the  facts get in the way of a good argument, eh?

Selick then goes on to criticize the “absurd” 2007 Supreme Court decision in the BC Health Services case – in which the court ruled that the BC government’s failure to adequately consult with unions about contract changes and layoffs undermined the unions’ right to collective bargaining. Selick contends that “[c]ertainly people should have the right to bargain collectively so long as every member of the collective is there voluntarily and can opt out of the collective at will. But if ‘collective bargaining’ includes the power to force involuntary participants into a deal — as it does under today’s laws — then the notion of it being a Charter right is preposterous.”

This misinterpretation of “collective” is so fundamentally misguided as to be staggering. A “collective” can only achieve something if that something is what the collective’s members, or the majority of its members, want to achieve – and that’s true of a collective in any context, not just in collective bargaining. And collective bargaining only works as a process if the union bargains for what its members want. To determine what the members want, the union usually surveys its members to see what outcomes they want from the bargaining process, and structures its bargaining strategy around achieving those outcomes. If those outcomes aren’t achieved, the ratification vote on the proposed agreement gives union members the opportunity to reject the agreement if they aren’t happy with it. It’s really hard to see how that process can be characterized as “forc[ing] involuntary participants into a deal”. If anything, union members have more control over the “deal” than, say, the amount of control that shareholders have over decisions in a publicly-traded business.

Selick then takes aim at the SFL’s “right to strike” argument: “Strikes are about collective work stoppages, enforced in some provinces by law and in others by sheer intimidation, with the expectation that the employer will still hold strikers’ jobs open for them no matter how long they disrupt its business.” (Interestingly, Selick doesn’t name the provinces which allegedly allow strikes to be enforced through “sheer intimidation”, or even define what she means by “sheer intimidation”.) A strike initiated by a union is intended to “disrupt…business” for the employer – and a lockout, which she doesn’t mention, initiated by the employer is also intended to “disrupt” workers’ income. Both strikes and lockouts are designed to put pressure on the other side to concede in bargaining, and as such Canadian labour law has rightly attempted to balance how and when unions and employers engage in strikes and lockouts. However, Selick’s distaste for “work stoppages” apparently doesn’t extend to “work stoppages” initiated by employers, or the “disruption” caused by those actions.

While I commend the Supreme Court for being broad-minded enough to invite a range of perspectives in the SFL case, I hope that the CCF’s intervention in that case has  more logical reasoning and more factual accuracy than Selick’s column. The decision in the SFL case will potentially have a huge impact on Canadian labour law and on future union-employer relationships, and as such the issues in the case deserve to be treated thoughtfully and fairly. Selick’s analysis does nothing to contribute to a reasonable discussion of these issues.

 

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