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Relying heavily on ILO standards, the Supreme Court of Canada in B.C. Health held for the first time that the Charter guarantee of freedom of association protects not only the right of unions to organize but also their right to bargain collectively. In the authors' view, the decision in B.C. Health calls into question the established legal framework of labour relations in Canada, according to which only those unions with majority support in the bargaining unit can exercise such rights, and implies that the state is under a duty to protect the associational rights of minority and non-statutory unions as well. This paper explores how the New Zealand experience with minority and pluralist unionism, as it has developed under that country's Employment Relations Act 2000, may provide guidance to Canada on what an alternative model might entail and on the consequences of adopting such a model. Emphasizing key points of comparison and contrast between New Zealand and Canada, the authors contend that a legal framework which supports majoritarian exclusivity can also allow and support minority unionism, in a way that is consistent with international standards on freedom of association.
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The Canadian union certification system guarantees workers rights to organise, bargain collectively, and strike only when a majority of co-workers favours unionisation. This contravenes International Labour Organisation standards, in which the freedom to associate is unqualified by majority support. In recent years, the Supreme Court of Canada has drawn on ILO principles to interpret constitutional rights as covering organising and collective bargaining activities related to freedom of association under section 2(d) of the Charter of Rights and Freedoms. However, it has not as yet ordered Canadian governments to enact labour relations laws consistent with these new constitutional rights. Neither has there been a general call for such legislative change. Instead, many fear that statutory support for non-majority unionism would lead to multi-union representation and intensified inter-union competition, but fail to consider that sharing the workplace might actually promote inter-union cooperation against a common adversary in management. This study addresses this shortcoming by looking at the extent and nature of inter-union collaboration in New Zealand, where non-majority, non-exclusive representation exists already. Collaboration was found to be common, not only over bargaining and lobbying, but also in organising. Implications for Canada are explored.
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Strategies designed to revive the declining union movement require new resources and new members for success. For this, many unions often used closed or agency shops. We compare these with the now dominant open shop as well as the union default. These options are assessed by asking how effective would each be at securing both members and resources for unions; and how much would each option protect and/or advance worker's autonomy in terms of various individual freedoms? Though closed and agency shops have many merits, especially in relation to the open shop, we conclude that the union default is superior to both.
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Income inequality has risen in Canada with the decline in union density and, thus, in union influence. Both trends have occasioned various proposals to reform federal and provincial labour relations systems, especially those aspects concerning certification. However, most proposals have been based on minor modifications to the Wagner Model of exclusive, majoritarian representation. To realize the full potential of these reform proposals, including, importantly, the likes of ‘broad-based bargaining,’ we contend that union membership should be the default option for new workers. Such a change would enable these proposals to increase absolute and relative levels of union membership, thereby providing the organizing resources (financial, human) required for much higher levels of union influence. In this study, we show that those living in Canada generally support union membership by default and would not opt out afterwards. We believe this popular support justifies making union membership automatic for new workers.
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- Journal Article (4)