While much has been written concerning the gradual decline in union representation in Canada, there has been little if any public debate on the social consequence of that erosion. Union density (the percent- age of the non-agricultural labour force organized) reached its peak in Canada in 1984 at approximately 38 percent. Since then this percentage has gradually declined to approximately 29 percent. There is nothing on the horizon to suggest that this erosion is a temporary phenomenon, soon to be reversed. Indeed such declines are found in many market-based economies. In France, approximately 9 percent of the labour force is organized, down from approximately 19 percent in 1980. Membership in British trade unions has gone from a den- sity of 56 percent in 1980 to approximately 28 percent in 2006. The United States has witnessed the most precipitous decline, with approximately 9 percent of the private sector economy organized. In 1960 the levels of representation in the US and Canada were roughly similar at approximately 30 percent.

A more telling statistic is where union representation in Canada exists. At present approximately 71 percent of the public sector is organized. The percentage of private sector employees organized stands at approximately 17 percent. Approximately 56 percent of all union members are in the public sector. In the private sector union representation is concentrated in traditional goods-producing industries: 30 percent organized in manufacturing, 30 percent in construc- tion, 22 percent in natural resources. Organized labour has not enjoyed significant success in organizing the expanding service-producing sector of the private economy; here union density is low: finance and banking, 8.3 percent; accommo- dation and food, 6.3 percent; professional, scientific and technical, 4.3 percent. Significantly, the service-producing sector of the economy, except for education, health, social services and public administration, is more than twice the size of the goods-producing sector.

The reasons for this failure in union growth are varied and documented. Among them are that the industrial sector ”” businesses such as autos, steel and forestry, traditional cen- tres of union strength ”” has already been organized and is not a union growth sector; indeed it is currently in relative decline. Other reasons are the ability of employers to out- source production nationally and internationally; the growth of the hard-to-organize service sector with its large contin- gent labour force; management use of union avoidance human resource prac- tices, both progressive and otherwise; limited changes to labour legislation in a changing social and economic envi- ronment; provisions such as more restrictive labour legislation: mandato- ry certification votes, and as at Wal- Mart; employer challenges to existing labour legislation.

This decline in representation commonly results in questions con- cerning the relevance of unions in the present economic and social environ- ment and the appropriateness of tradi- tional adversarial collective bargaining practices. However, a more fundamen- tal matter is less frequently raised.

Unions provide employees with a form of representative ”œvoice” at the workplace and varying degrees of influence over their terms and condi- tion of work. As levels of representa- tion decline, this voice is reduced. The question rarely addressed is, What social value do we attach as a society to employees having input and influence over their working conditions? Are we satisfied with an increasingly employer-directed work- place and diminished employee influence in an increasingly democ- ratized and rights-based society? Indeed, are such structures congru- ent with a more highly educated, skilled and socially aware labour force? Is this just a ”œunion problem” or is it a human rights issue at a soci- etal level?

Canadian labour laws governing the recognition of unions and regulat- ing the collective bargaining process are largely a product of the 1940s. These laws were intended to give employees influence at the worksite and balance the power of the employer. As well, they were formulated on the realities of those times: a single household wage earner who was likely male, permanent employment with one employer for perhaps all of one’s career, employment in a goods-producing industry, regular hours of work.

Today’s reality is significantly dif- ferent: a two wage household, non- permanent contingent employment or contract employment, a rapidly expanding service sector composed of many small and mid-sized employers, coincidental employment with multi- ple employers. Current labour laws reflect the older reality; they have not been changed to reflect or accommo- date significant changes in economic and social circumstances. The question becomes, What legislative options might be appropriate in these new cir- cumstances?

One alternative is simply to do nothing. Good employers will employ good human resource practices, treat employees fairly and be receptive to their needs. Government could simply acknowledge and encourage such ini- tiatives. While progressive practices may exist in a great many workplaces, this does not deal with the employer’ who, wilfully or in ignorance, pays lit- tle regard to employee needs or inter- ests. In such instances, if one believes employee influence is a desirable objective, some minimal thresholds may be necessary. As with present labour rights and protections, such threshold requirements would have minimal impact on good employers.

But several options for reforms are possible, if voice is preferred. In the first place, labour or human rights legislation could be revised to permit employees who are not represented by a union to form an employ- ee association or council. If, for example, 10 percent of the employees of the organ- ization vote in favour of an employee council, employ- ers would be required to rec- ognize such a council. The provision could be limited in its application to employers of a certain size, such as more than 10 employees. Non-man- agement employees would choose their representatives on the council. The employer would be required to meet with the council at least annually, or as otherwise agreed. The employer would also be required to provide the employ- ee council annually with information on the organization’s future operating plans, such as the adoption of new technology, anticipated business and planned changes at the workplace.

The extent of this information requirement would be defined in statute and take into account the needs of business con- fidentiality. It would be required that such information be submitted in a ”œtimely fashion” in sufficient time to permit a response by employee repre- sentatives to employer-planned initia- tives. The employer would also be required to receive submissions from the work council and could respond if it so chose.

The intent of this initiative would be to give unrepresented employees some voice at the workplace. It also addresses the common employer com- plaint that it would prefer to deal directly with employees and not through an intermediary third party, namely a union. For employees it cre- ates a mechanism between no voice and full unionization, something bet- ter than the employer-prescribed ”œmy door is always open.” It provides a ”œright to know” so employees can plan their economic futures. It operates on the assumption that if employees have information they will respond in a manner appropriate to the situation. If employees were unsatisfied with the results of this collective arrangement, they could pursue unionization under existing legislation.

This arrangement is not without precedent. A similar arrangement is gradually being adopted in law in the countries that make up the European Union, in part because of a decline in union representation.

Another option may be to alter labour laws to better enable employ- ees who desire union representation rights to obtain that right. Presently, a favourable vote of 50 percent plus one by the members of a proposed bargaining unit is a common requirement for union certification. If only 49 percent of employees vote in favour, no certification occurs. Such a vote is often described as a proper democratic outcome. In fact the opposite is true. In an election the candidate one votes for may not be elected but one does have representation via the successful candidate. This principle could be applied by giving union rep- resentation rights to the minority who desire such rights. A threshold level of membership, such as 25 per- cent of the proposed bargaining unit, might apply. Once union member- ship exceeds 50 percent, the union could trigger the normal certification procedures and apply to represent the entire bargaining unit. In sum- mary, employees, beyond a threshold number, would be provided with a representative voice.

It might be argued that the employ- er could undermine the minority repre- sented by providing improvements to those employees not represented. However, this can and does occur now under existing labour laws.

Decisions concerning ”œcommunity of interest” ”” who can or cannot be members of a union for purposes of collective bargaining ”” could be revised. Currently this is left to the dis- cretion of labour relations boards within prescribed legislative limits.

In its recent decision on the British Columbia Health Services case, the Supreme Court of Canada declared that section 2(d) of the Charter, regarding freedom of association, pro- tects the right of employees to engage in collective bargaining ”œand their capacity in common to reach shared goals related to workplace issues and terms of employment.” Is this now Charter-protected freedom to be trumped by the application of narrow- ly focused labour relations statutes whose aim in application is workplace administrative convenience? Is it not the employee’s right, via freedom of association, to decide with whom he or she has a ”œcommunity of interest”? In the Supreme Court’s view, labour legislation that interferes with this freedom of association is required to ”œnot substantially interfere with that right.” As well, interference with this right must be justified under section 1 of the Charter, ”œonly to such reason- able limits prescribed by law as can be demonstrably justified in a free and democratic society.” Given the clarity with which the Supreme Court has spoken, it should not be necessary to advocate for a broader definition of ”œcommunity of interest” for the pur- poses of collective bargaining; rather the present narrow limitations as con- tained in labour legislation require a defence from the upholders of exist- ing practices.

Related to expanding the applica- tion of ”œcommunity of interest,” con- sideration could be given to permit collective bargaining by those who are legally excluded, such as farm workers and domestics. Again the Charter’s freedom of association provision applies. The Supreme Court has clearly rejected its earlier 1987 ”œlabour trilo- gy” decisions. Its decision on Dunmore in 2001 recognized the right of employees to pursue their employ- ment rights collectively and the BC Health Services decision recognizes collective bargaining as a valid expres- sion of freedom of association. As well, the right to organize could be extend- ed to those who perform ”œmanagerial functions,” a group that includes thou- sands of service industry middle man- agers; they are commonly excluded in all jurisdictions. The typical counter- argument is that the presence of mid- dle managers in a bargaining unit would constitute a conflict of interest. This extension would require only that they be in a separate bargaining unit. This arrangement already exists for some levels of supervision. As well, the right of unorganized employees to appeal and if necessary arbitrate at public expense what they consider unjust dismissals could be recognized in law. This already exists under the Canada Labour Code.

Labour standards legislation, both federally and provincially, sets minimum standards for a variety of work conditions such as pay, termina- tions, hours of work, overtime, harass- ment, holidays, leave, vacations. In most jurisdictions the employee must originate the complaint in writing. In two jurisdictions a third party may originate the complaint, while a num- ber of jurisdictions allow anonymous complaints. Labour standards appeal mechanisms generally do not apply at unionized work settings. The direction usually given is that work-related con- cerns be taken up with one’s union.

Labour standards legislation could be revised to make clear that unions are permitted to represent, file complaints and participate in appeals regarding contraventions of such statutes on behalf of employees they do not repre- sent. This would provide a process whereby reluctant employees could anonymously raise concerns via a union over working conditions; as well it would alleviate employee concerns regarding employer reprisal given union oversight. Further, it would also provide unions with an introduction to troubled workplaces. Labour standards enforcement is essentially a complaint- driven process. Consequently the capacity for labour standard proactive enforcement is limited. By way of illus- tration, Alberta has approximately 46 employment standards enforcement officers for a workforce of 1.5 million; Nova Scotia has 15 for a labour force of 384,000. In contrast, unions are decen- tralized and generally aware of working conditions in sectors they represent or desire to represent; and their steward system provides ”œon the ground” con- tacts with employees in their industries. Indeed, in a time when governments demonstrate a consuming interest in public-private partnerships, considera- tion could be given to expanding the role of the labour movement in the enforcement of labour related statutes.

Revisions, as proposed, to the Canada Labour Code, given that it rep- resents approximately 10 percent of the labour force, would have a power- ful demonstrative effect. However, one would expect strong resistance from the powerful economic actors subject to its coverage, such as banking, ship- ping, the grain industry and inter- provincial transport. A more likely origin would be revisions to provincial legislation, given the broad employee coverage of such statutes and the con- stitutional primacy of provinces in this area. Needless to say, such initiatives would most likely have appeal in provinces that have traditionally elect- ed left-of-centre governments.

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