Poilievre, the scrappy Conservative MP for Nepean-Carleton, has pledged to get his Tory colleagues on board his campaign to make union dues optional for members of the federal public service.
The move would effectively scrap “union security” and eliminate the Rand Formula, a long-standing practice that requires employers to deduct union dues from the paycheques of workers whether they belong to a union or not.
For Poilievre, it’s a question of workers’ rights. And he is pleased by the progress he is making.
“My efforts are progressing nicely and I am overwhelmed by the support of my colleagues and constituents for workers’ free choice,” he said in an email.
It’s a move that would upset more than 60 years of labour law and practices in Canada. And there’s little doubt it would seriously weaken unions as a voice for employees in the workplace and as political opponents to government.
That’s because the Rand Formula — named for Ivan Rand, a mid-20th century Supreme Court of Canada justice who came up with the idea while arbitrating a strike in 1945 — is a central principle of collective bargaining across Canada and a practice many unions consider their lifeblood.
Its elimination could amount to a one-two punch for union survival, coming at a time when the government is also backing a Conservative MP’s private member’s bill that would force unions to further open their books, including what they spend on political activities.
Critics argue it’s the latest step by the Conservative government to take on Canada’s unions, which have traditionally been key New Democratic Party supporters.
“This would be an all-out war,” says Gary Corbett, president of the Professional Institute of the Public Service of Canada, “but I don’t think people in the workplace will back down easily. They could put unions to their knees with this but I don’t think it would be the death knell.”
In Ontario, the Conservatives in Ontario are also advocating for an end to mandatory dues payment. The thinking goes that the Tories are banking that if workers can chose whether to pay dues for unions’ services, most will stop and unions will go broke.
The legality of the Rand Formula has been tested in the courts over the years and survived, but legal experts warn the formula is vulnerable and could easily be undone by new legislation.
“The Rand Formula is by no means sacrosanct in the political realm,” wrote Debra Parkes, a law professor at the University of Manitoba who has studied the formula since the Charter of Rights and Freedoms was introduced in the early 1980s.
“While union security provisions have been upheld in the courts, they have not been constitutionalized. The Charter has not been the undoing of union security but the Rand Formula remains vulnerable to legislative repeal or weakening.”
It boils down to this: the courts have accepted that the Rand Formula doesn’t violate an individual’s right to freedom of association, but they haven’t gone so far to rule that it is protected by the Charter. It simply exists because of legislation — and politicians, of course, can change that with the stroke of a pen.
Brad Walchuk, a professor of labour studies at McMaster University in Hamilton, Ont., has studied how labour laws and practices could be vulnerable to change under a union-unfriendly government.
He says the Charter protects the Rand Formula from someone who wants to opt out of mandatory dues as long as the government supports the formula. The Charter may not, however, be able to protect the formula if the government wants to do away with it.
“If legislation were to pass, it would be a major blow to unions,” Walchuk says. “Implicitly they would introduce this to bust unions. Publicly they wouldn’t say that, but for practical purposes that is what it would do — and they are aware of that.”
Unions would likely fight changes to the Rand Formula all the way to the Supreme Court. What’s unclear is how high court would react.
Unions have already won the battle that automatic dues checkoff doesn’t violate the Charter but they would have to go further next time and prove it is essential to the freedom of association guaranteed by the Charter.
The court wasn’t particularly labour friendly during the early Charter years; many of its decisions supported individual rights. That shifted in recent years as the court recognized individual rights come with collective interests and even collective rights.
The most prominent example of the shift came in the 2007 B.C. Health Services case in which the Supreme Court recognized collective bargaining as a constitutional right under the freedom of association guarantees.
Before that, the court made two significant rulings on challenges to union security. It upheld mandatory dues in what is known as the Lavigne case and later even upheld mandatory union membership in the Quebec construction industry in the Advance Cutting and Coring case.
More recently, the Alberta Labour Relations Board stunned even unions when it decided potato chip manufacturer Old Dutch violated the Charter’s freedom to associate by failing to make mandatory union dues part of collective agreements.
The roots of the issue go back to 1945 when Rand came up with the formula that bears his name while arbitrating a Ford autoworkers labour dispute. Striking workers demanded all employees be union members and wanted Ford to collect the dues for them.
Rand came up with a compromise, much praised as a balance between individual and collective interests as well as labour and capital. He rejected the idea of mandatory membership, but decided employers should collect dues whether workers joined the union or not.
In a research paper, law professor Parkes said Rand came to believe union and management were “co-partners” of capital.
As a result, mandatory dues gave unions the financial security they needed and prevented “free-riders” who wouldn’t pay but would get the benefits of higher pay, pensions and other benefits that unions won at the bargaining table.
But with this financial stability of dues, Rand said unions had to be “responsible and democratic,” meaning their officers had to be elected and can be thrown out of office if members are unhappy with their performance. Unions must also represent all members, whether they join or not.
For now, the Lavigne case is the law. In 1991, college professor Mervyn Lavigne argued that paying union dues violated his right to freedom of association. He objected to the Ontario Public Service Employees Union (OPSEU) using a portion of his dues to the back the NDP and other causes he didn’t support, such as abortion rights and striking British miners.
Lavigne’s lawsuit was financed by the National Citizen’s Coalition, later headed by Stephen Harper, which has long pressed for abolition of “forced union dues.”
Ultimately, the Supreme Court dismissed Lavigne’s case and decided financial security was important for unions so “they can participate in the broader political, economic and social debates of society and contribute to democracy in the workplace.”
Labour expert Walchuk says it is important to note that the court did not find that dues are mandatory but rather that employees don’t have the right to opt out because that could “seriously undermine the spirit of solidarity” that underpins unionism.
The ruling opens the door for the government to change the law and offers unions no legal recourse, says Walchuk.
When he first introduced his proposal, Poilievre said the change was aimed at public servants, but it could affect all employees who work in federally regulated industries, from airlines and railways to banks and telecommunications. That’s about 10 per cent of Canada’s workforce.
Six provinces and the federal government have made the Rand Formula mandatory through legislation. Four provinces, among them Alberta and Nova Scotia, have not.
Federal workers are governed by two pieces of legislation: the Canada Labour Code for the federally regulated private sector and the Public Service Labour Relations Act for public servants. In both cases, union dues are automatically deducted from paycheques whether or not workers are part of the union. The practice is enshrined in collective agreements.
The lightening rod for Poilievre’s assault conveniently came when the Public Service Alliance of Canada, the largest union representing Canada’s public servants, backed the separatist Parti Québécois in the Sept. 4 Quebec election narrowly won by the PQ.
Poilievre, whose Nepean-Carleton riding is home to many public servants, argues unions representing non-partisan public servants should not back any political party or candidates, especially those advocating the breakup of Canada. He contends that public servants who are uncomfortable with their dues going to causes they don’t support should be able to opt out.
It’s a sentiment that taps nicely into the resentment that divides PSAC membership, which includes activists who support political action and social causes, and those who want their union to stick to bread-and-butter issues at the bargaining table.
Poilievre has since ratcheted up his attack, zeroing in on the PSAC for being among the unions that wrongly contributed $334,000 to the NDP during the last election.
The PSAC is fighting back.
“He is trying to distract the public from what the government is doing, which is cutting public services and good jobs without any transparency,” says PSAC President Robyn Benson.
The PSAC is the most militant and political of the 17 unions representing federal public servants. It’s the only union with a large war chest for political action campaigns, it has a $1-million social justice fund as well as a healthy strike fund.
The PSAC has traditionally been standard-bearer for federal workers, sparking the observation that smaller public service unions have piggybacked on PSAC settlements for their members.
There are those who believe Poilievre’s campaign is little more than political grandstanding designed to play to the Conservative party’s base. They don’t believe the Conservatives wouldn’t risk an all-out war with unions.
Others say his aim is to build support for Conservative MP Russ Hiebert’s private member’s bill, which would force unions to reveal their finances, including money spent on political activities. That bill, also supported by Prime Minister Harper, is in second reading.
Walchuk believes another legal weak spot for labour will be revealed if the government tries to impose mandatory secret votes during union certification drives, which would weaken recruitment efforts to sign up new members.
He argues unions must take theses threat seriously in today’s wobbly economic climate, a time when governments and business are increasingly demonizing unions. Ontario teachers would never have dreamed a few years ago that the Liberals, whom they general considered an ally, would freeze their pay and remove their ability to strike.
Similarly, the federal Conservatives’ heavy-handed interference to end the Air Canada and Canada Post labour disputes should sound the alarm about the future of collective bargaining and the right to strike under federal jurisdiction, he says.
“Whether this is pandering for votes or grandstanding, the unions shouldn’t pass it off,” Walchuk says. “This is a threat that should be taken seriously and they should have strategies in place to make sure it doesn’t happen.”
Original Article
Source: ottawa citizen
Author: kathryn may
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