The start of 2022 saw some citizens across Canada taking to the street to protest the control they believe they have lost over their lives due to COVID-19 measures. But there’s a more serious problem. Canadians have long been losing control in an area much more central to their daily lives –their jobs.
The fastest-growing segment of the Canadian economy is the service sector, with 15 million workers. This includes workers in retail, finance, education, transport, real estate, the public sector and health care – the area most deeply impacted by the pandemic. It is in these areas that temporary employment is most common.
A number of systemic barriers prevent these employees from taking control of their work lives and gaining the same benefits as union members. Governments could redress this imbalance through legislative changes and in a variety of other ways, even if those employees stop short of forming unions.
Statistics Canada reports that temporary employment has jumped 50 per cent in the last 20 years while permanent employment increased 33 per cent by 2019. Temporary workers generally earn less than their permanent counterparts and may not have access to traditional employee benefits such as health care, holidays, vacation leave, etc., or redress mechanisms. Because of the precarious nature of their jobs, temporary employees are often hesitant to raise employment concerns. Economist Armine Yalnizyan has said this may be the nature of tomorrow’s labour force. Welcome to the new gig economy.
Legislation permitting collective bargaining in Canada originated in the 1940s and ’50s and was imported from the United States. The “Wagner” form of collective bargaining, named for former U.S. senator Robert F. Wagner, has certain legal characteristics. Under it, unions are required to show they have the support of the majority of the proposed membership in order to be certified by the labour board to represent them all. The labour board can decide who can belong to the proposed union and which employees share a community of interest. This highly centralized form of collective bargaining features detailed collective agreements, dispute settlement processes and the right to strike.
Wagner collective bargaining was intended to apply to employment conditions that existed in the 1930s – large goods-producing plants and long-term employment of a largely male labour force. But that is not the reality today. Women and immigrants, who make up a large portion of today’s temporary employees, have little permanent connection to their workplaces, and limited union prospects. Thus, a mismatch exists between existing collective bargaining legislation and today’s temporary labour force. These laws fit yesterday’s world, not today’s reality.
Employers often resist unionization and use their right to inform employees of their opposition to unionization, so long as they do not intimidate or coerce. An employer with deep pockets can simply wait out the union via legal challenges to certification or delays in negotiations. Others may covertly threaten to close or move the enterprise to another jurisdiction. Many service workplaces are small, with high employee turnover, and thus the cost for unions to organize and serve these workplaces is high. Unions might be viewed by these potential members – many of whom are recent immigrants – as large, distant, bureaucratic and conflict-prone.
In 1981, during parliamentary hearings that preceded the adoption of the Canadian Charter of Rights and Freedoms, Robert Kaplan, justice minister at the time, said there was no need to identify collective bargaining as a separate right, arguing it was covered by the section on freedom of association. In 2007, the Supreme Court of Canada ruled that engaging in collective bargaining was a Charter right. This means that, unlike in the U.S., it is not simply a legal privilege that could be arbitrarily restricted or legislated away; rather, it is a fundamental freedom.
In a later case, the court found that employees have the right to make written submissions to the employer without fear of reprisals when they bargain collectively. Other decisions confirmed the right to picket and strike. Thus, the core fundamentals of collective bargaining – to negotiate, picket and strike – are Charter rights of all employees, with or without union certification.
It is important to note what the court did not say. It did not constitutionalize the Wagner form of collective bargaining; rather, it constitutionalized collective bargaining as a process. Thus, varied forms of collective bargaining are possible. The court did not adopt the majoritarian principle, so any group of employees can combine to achieve their employment goals.
If collective bargaining is a fundamental freedom, it cannot be restricted to those who have successfully navigated the costly Wagner certification labyrinth. As David Doorey and others have argued, if organized labour has been unable to provide access to collective bargaining, it should be made available and more easily accessible to employees by other means. This would require revisions to employment standards and trade union legislation.
Such a development would not break new ground. Federal and provincial occupational health and safety legislation has been the responsibility of joint employer-union/employee committees for decades. It permits employee participation in setting health and safety practices and allows employees to refuse unsafe work without fear of penalty. For more than 20 years, the Canada Labour Code has granted non-unionized employees access to binding third-party adjudication to decide if their termination is unjust.
Inclusion in labour standards legislation would permit employee groups to come together, without employer interference, and enable them to submit proposals on working conditions without fear of reprisal; the employer would be required to respond in good faith. Some employees would still seek union certification if they were dissatisfied with employers’ response to their proposals. For the union, the hard front-end work of developing group solidarity would already be in place.
Wagner collective bargaining legislation could be amended by removing the majoritarian principle and the community-of-interest criteria. Unions would simply be certified to represent a group of employees based solely on clear evidence it was their wish to be so represented. This would permit minority unions.
The Wagner system, with its legal complexities and costs, creates barriers to the exercise of a fundamental right and is a disadvantage to the labour movement and unorganized employees.
Including collective bargaining rights in labour standards legislation and altering the Wagner system gives unorganized employees additional options for levelling the power imbalance with their employer. Organized labour could direct efforts at organizing minority unions. It could advocate on behalf of specific service industry employees and advance the needs of particular groups. It could advise employees on their legal entitlements and represent them in pursuing their constitutional rights. It could provide access to benefit plans. It would permit union membership for individual employees and unorganized employee groups.
By proceeding in this manner, organized labour would be returning to its roots. It advocated for and represented employees long before that right was granted legally. It provided its members with benefit plans and organized various classes of workers.
While this proposal gives employees additional means to level the power imbalance with their employers, it also supports a broader democratic ethic in society. It would likely be opposed by some governments, management and some unionists. But such a proposal is grounded in constitutional law and therefore warrants consideration.
The suggestions of Dr. Dionne Pohler, associate professor at the University of Saskatchewan, are acknowledged.