Freedom of Association in Canada: The Dilemma for Trade Unions in a Liberal Society

Trade unions in a liberal society are caught on the horns of a dilemma over freedom of association. In respect to the Canadian Charter of Rights and Freedoms, unions are faced with relying on the positive freedom to associate as a defence for union security clauses, and, at the same time, denying freedom from association claims of those who do not wish to participate in union membership and/or union activities. The aim of this thesis is to explore that dilemma, and to assess some of the possible strategies union leaders could employ to come to terms with it. The dilemma that trade unions face consists of several elements. The source of the dilemma is found in the conflict over negative and positive liberty and the nature of freedom, and more specifically over competing visions of freedom of association in the trade union context. This conflict has found its way into the courts; in particular, the Lavigne case, which challenges political expenditures by unions (in certain circumstances), has generated much controversy and resulted in two opposing judicial decisions. However, the courts are not the only arena in which an attempt is being made to balance the competing claims of liberty; the political realm offers another avenue through which trade unions could attempt to influence labour legislation. However, unlike other intervenors such as women's or aboriginal groups, the trade union movement was largely absent from pre-Charter Joint Committee hearings. In hindsight it is quite clear that labour's non-participation represented a missed opportunity to influence the wording of freedom of association in a way that would make challenges from a negative liberty standpoint more difficult. In addition, the post-Charter prospects of lobbying government to implement legislation which would prevent negative liberty claims from succeeding (possibly through the "notwithstanding" clause in the Charter) appear quite dismal. Thus, a trade union strategy which would look for a political avenue out of its dilemma was not implemented pre-Charter and looks doubtful post-Charter. Nonetheless, in terms of the individual and his freedom (of association) in a liberal society, a fair balance between negative and positive liberty claims should be struck; one which allows limited coerion of the individual in the form of union security (the agency shop), but also restricts trade unions in the form of limits on political expenditures. This balance may, however, seriously threaten the political role of the trade union community. But, while individuals retain their right to exercise negative liberty claims, whether or not they exercise them depends upon their moral beliefs. And an individual convinced of the importance of the trade union community and the threat to that community posed by negative liberty claims, will be much less likely to exercise his right to invoke freedom from association. Unions might be able to meet this difficulty, however, by working towards a consensus about the importance of the trade union community and, more particularly, its political objectives. Such a strategy may be the most suitable alternative that trade unions can adopt in a liberal society.

DOI: 10.14288/1.0097785