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The Ontario PC Party and the Right to Work

Josh Mandryk

February 20, 2014

The Ontario PCs want to do away with exclusive representation – not just the Rand Formula.
So why aren’t we talking about it?

Much has been made of the Ontario PC Party’s proposal to introduce what they refer to as “right to work” orworker choice” reforms in Ontario.  Critiques of this proposal have assumed it would parallel U.S.-style “right to work” and have focused on the “free-rider” effects of these laws – the fact that they allow employees who opt out of paying dues to “free ride” on dues paying members by receiving the benefits of the collective agreement and union representation without paying the dues which those benefits possible.

Unfortunately, if we turn to the proposal laid out in the Ontario PC Party’s private member’s bills on the matter, these free-rider critiques miss the mark.

The Ontario PC proposal, as outlined in Bill 64, Defending Employees’ Rights Act (Collective Bargaining and Financial Disclosure by Trade Unions), 2013,  would not simply allow bargaining unit employees covered by a collective agreement to opt out of paying dues. Rather, it would allow bargaining unit employees to opt out of the collective agreement in its entirety, and have individual contracts of employment with their employer.

This same proposal was laid out in the previous legislative session in Bill 78, Defending Employees’ Rights Act (Collective Bargaining and Financial Disclosure by Trade Unions), 2012.  This bill was killed when the Legislature was prorogued following Premier McGuinty’s resignation.

The fact that the PC proposal was aimed at the principles of majoritarianism and exclusivity (and not the Rand Formula) was made clear by then-PC Labour Critic Randy Hillier in January 2013, when he wrote in the Windsor Star that:

[Rand’s] decision was fair and sensible and our proposal stands by that decision. In the last session of the legislature, I tabled a bill which formed the basis of our proposal. The bill would have allowed workers to opt out of a bargaining unit, its union and its collective bargaining agreement altogether.

Despite this, commentary has largely ignored the substance of the PC proposal and continued to treat it as if it paralleled U.S.-style “right to work”. This is problematic because, as noted previously, the “free-rider” critique of U.S.-style right to work is not relevant to the PC proposal. More importantly, the PC proposal would be even more destructive to labour rights in Ontario than U.S.-style “right to work”.

By undermining the very basic principle of exclusivity, the PC proposal would allow employers to hire non-union employees within the bargaining unit outside of the collective agreement under individual contracts of employment. This would seriously undermine the bargaining unit.

At the same time, the PCs want to maintain the principles of majoritarianism exclusivity for some purposes. They do not want to allow workers to form minority unions. Rather, they want to maintain the requirement for a majority vote in order to form a union, but they don’t want that majority union vote to be binding on the minority. On the other hand, the will of the majority would be binding on the minority when less than 50% want to form a union. Thus, the PCs want to maintain the principles of majoritarianism and exclusivity when it serves their anti-union purposes, and discard them where they don’t.

Professor Brian Langille and I have critiqued this proposal in the latest edition of the Canadian Labour and Employment Law Journal. An earlier draft of this paper is available online here.  We argue that, aside from whatever economic or Charter-based critiques that can be made of this proposal, it also suffers from legal incoherence.

You can either have a system of labour law based on the principles of majoritarianism and exclusivity, or one that is not. But you cannot have it both ways. Canada could opt for a more “European-style” system of minority unionism, but you cannot simply cherry pick pieces of coherent systems as they serve your political ends.

We argue that the only way for the Labour Relations Board to turn the PC proposal into a workable system of collective representation, if it one day became law, would be to read in the permissibility of ‘minority’ unions which would not need a majority vote for certification.

Regardless of its legal incoherence, this attack on majoritarian exclusivity is a more fundamental assault on our system of collective representation than U.S.-style “right to work”. And we should be talking about it.

 

Lawyers

Joshua Mandryk

Practice Areas

Labour Law