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How Canadian Laws on Union Dues and Membership Really Work

 

The Ontario Conservative Party has promised, if elected, to do away with what they call “forced unionism”.  They have inferred that they will pass a law that forces unions to provide free services and benefits to workers who are not their members and who pay no money towards the cost of providing and maintaining those benefits.  These ideas are taken from the deep southern U.S. Republican states, and are designed to weaken the labour movement, which effectively campaigns against Conservatives in Canadian elections.  I have discussed this before.

The Conservatives either do not understand what Ontario law says about union dues and union membership, or they are deliberately misstating what it says in order to confuse the public.  Take your pick.

I’ve prepared a quick overview of Canadian laws on union dues and membership for a textbook I’m writing. Here it is, in case you are interested.  The summary deals only with the non-construction sector, which is most of the economy.  The construction sector has different rules because the labour relations model is very different.

This is what it shows:

In Ontario, employees can only be required to pay union dues or to become union members if a majority of employees in the bargaining unit affected vote for this to happen.  There is no law requiring union dues be paid, and no law requiring employees to become union members.  If the union demands in bargaining a mandatory union dues clause, then the employer cannot provoke a strike or lockout employees over this.  The clause goes in the agreement.  However, that collective agreement can only come into existence if it is approved in a ratification vote accepted by a majority of employees.  So a mandatory dues or membership clause can only exist if a majority of employees want it to. This is also true of every other term in the collective agreement, except a few terms that are specifically required to be included in every collective agreement, like a no strike clause and a mandatory arbitration clause.  The wage rates, ‘just cause’ provisions, pension and benefits clauses, like the union dues and union membership clauses, if any, are all in a collective agreement because a majority of employees wanted these things in the agreement.

labourlawTherefore, we can only say that employees are ‘forced’ to pay union dues if by that we mean subjecting people to a rule approved by a majority is a form of force or coercion.  If that is the case, then not only is our entire model of labour law illegitimate, then so too is our entire democratic process.  Both systems are based on the idea that majoritism is an appropriate model for making decisions.  If it is improper for a majority of employees to approve a rule requiring all employees to pay union dues for the services and benefits they all receive from the union, then so too is it improper for Canadians to be forced to pay taxes to a government they didn’t vote for, or to obey a rule with which they disagree passed by an elected government.

 

 

Here’s a quick overview of the rest of the country.

The Federal jurisdiction and Newfoundland & Labrador have a similar model to Ontario, with the exception that there is no legal requirement for a collective agreement to be ratified by a majority of employees.  If the union requests a union dues clause, then the employer cannot fight about this.  Whether or not there is a mandatory union membership clause is up to the parties in bargaining.  In theory, a union could bargain a mandatory dues and membership clause without subjecting it to a ratification vote.  In practice, most unions put collective agreements to an employee vote even when the law does not formally require it.

In Alberta, British Columbia, New Brunswick, and Nova Scotia,  mandatory union dues and mandatory membership clauses are permitted to be bargained, but they are not required by law.  However, dues can only be deducted from an employee’s pay cheque if the employee signs an authorization requiring this.  Once an authorization is submitted to the employer, the employer must abide by it and deduct the dues.  In practice, collective agreements and/or union constitutions require employees to submit the authorizations.

In Prince Edward Island, a collective agreement may include a mandatory dues provision, in which case the employer must deduct the dues and submit them to the union.  However, if there is no mandatory dues provision in the agreement, then dues can only be deducted by the employer if the employee signs an authorization ordering the employer to do this.

The strongest union security provisions are found in Saskatchewan, Quebec, and Manitoba.  In Saskatchewan, at present, if a union so requests, the collective agreement must include both a mandatory union dues and mandatory union membership clause.  In Manitoba and Quebec, union dues are mandatory by virtue of the statute.  Thus, these two provinces are the  only jurisdictions in Canada that actually have ‘forced union dues’, in the sense that the law demands it.  Mandatory membership is permissible in both provinces, as it is every where else in Canada.  However, as in Ontario, no collective agreement can come into effect in Manitoba unless it has been approved by a majority of employees in a secret ballot.  Therefore, in Manitoba, like in Ontario, if a majority of employees do not want to pay union dues, they can refuse to ratify a collective agreement and decertify the union.

Issues for Discussion

In Canadian labour law, employees can only get access to collective bargaining if a majority of their coworkers also select this option.  This ‘majority’ requirement is unusual by international standards.  Employers (and even Conservatives) like this majority requirement, because it makes unionization more difficult.  That is why Conservatives and employers usually support employee strike votes, certification votes, and collective agreement ratification votes.  All are based on the idea that a majority of employees should be able to make rules that apply to all of the employees.  Yet Conservatives do not think that the majority should be able to approve a rule requiring all employees to pay an equal share towards the cost of bargaining and administration of a collective agreement.

One option is do away with the majoritism principle altogether.  Anyone who wants collective bargaining and union representation can have it.  That would deal with any concerns about ‘forcing’ employees to pay union dues.  The employer has to bargain with those employees who choose to be in a union, but other employees can continue to remain nonunion.  That is the way most of Europe works.

Should Canadian politicians move towards this model of ‘minority unionism”?

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