Labour Studies Index

Updated: 2019-04-26

Bringing Canada's Wagner Act regime into compliance with international human rights law and the Charter.

Document type Article
Author Adams, Roy J.
Journal Canadian Labour and Employment Law Journal
Volume 19
Date 2015-2016
Pages 365-398

Abstract

In recognizing a constitutional right to strike in its Saskatchewan Federation of Labour decision, the Supreme Court of Canada reaffirmed that workers in Canada are entitled to freedom of association rights that are at least equivalent to those provided by international human rights instruments. This paper considers the implications of this principle for employees in the private sector, where unionization rates have been in continual decline for sev- eral decades, by focusing on the potential of "minority" unionism for realizing Canada's international law obligations. The author notes that the ILO's super- visory committees have approved three options as being consistent with ILO principles on freedom of association: minority worker associations, each of which has full rights to represent its own members; unions which, though not representing a majority of the workers in the bargaining unit, are recognized as being the "most representative," and as such have the right to conclude a col- lective agreement applicable to all the workers; and unions certified under the North American Wagner Act model, through a majoritarian procedure. Thus, while ILO member-states are permitted to adopt legislation based on majoritar- ian exclusivity, such legislation cannot have the effect of depriving non-majority unions of the right to bargain collectively on behalf of their members, in those workplaces where no exclusive agent has been certified. With a view to ensuring that labour law and practice in Canada conform to international standards, the author proposes that every Canadian jurisdiction revise its legislation to provide for certification of the "most representative" minority union in a work- place, while retaining the existing procedures for certification of an exclusive bargaining agent. Under this proposal, the most representative union (or coali- tion of unions) in a bargaining unit would have all the rights and duties of an exclusive agent, but not an exclusive right of representation. In this way, the author contends, Canada could live up to its international law commitment to "promote" collective bargaining.