Should Union Membership Be Optional?

John Mortimer, the president of the Canadian LabourWatch Association says yes

As Canada is a signatory to UN’s 1948 Universal Declaration of Human Rights, our answer should be yes. Article 20(2)—“No one may be compelled to belong to an association”—articulates a person’s right to freely choose or reject union membership and still be able to get or to keep a unionized job. But despite this right and a growing worldwide trend to ensure union membership is optional, Canada still allows forced union membership and the use of union dues for political and other non-bargaining purposes. If another nation with independent unions and free collective bargaining still allows this coercive scheme, no union activist has named it over the last 12 years.

Change came neither rapidly nor easily to nations that previously allowed forced union membership and full dues. Between 1981 and 2007, brave, principled unionized employees across the 47 Council of Europe nations stood up to unions, employers and governments. They fought their way to the highest European court to gain the right to not associate and to not have their dues used to fund political and other non-bargaining activities. The European Court of Human Rights fully dismantled all of these aspects of union power over employees.

Like the 1950 European Convention on Human Rights, Canada’s 1982 Charter didn’t expressly enshrine the right to not associate. Yet, through judicial activism, our courts have read that right into their freedom of association provisions based, in part, on the UN declaration. Whether or not you support judge-made law, the result reflects the long-standing responsibility of signatory countries to uphold the UN-declared right.

In countries such as Australia and New Zealand, workers are protected by the law, even with union-friendly governments in power. Former Australian Labour leader and prime minister Julia Gillard wrote that her Fair Work Act “protects freedom of association, including the right to not be a member of a union and not to be represented by it.” In contrast, some Canadians who’ve lost their union membership have lost their jobs.

The Supreme Court of Canada’s 2001 Advance Cutting & Coring ruling is particularly troubling. The court confirmed the freedom to not associate but upheld forced union membership for Quebec construction workers, claiming that the province’s legislation was a justifiable way of limiting union violence. The foremost guardian of our laws essentially chose to limit a citizen’s right to not associate instead of sending the message that union violence is to be prosecuted, not rewarded.

The only jurisdiction showing some progress is Canada’s federal civil service, where a tenuous legislative scheme disallows collective agreements with forced union membership as a condition of employment. But most unionized Canadians cannot yet rely on the courts to protect their Charter rights. Politicians must therefore take action through legislation.


Gil McGowan, the president of the Alberta Federation of Labour says no

By now many people have noticed that Canada’s conservative parties are sounding more like American Republicans than traditional Canadian conservatives. Canadian conservatives are mimicking their American cousins on issues such as climate change, guns, taxation, immigration and abortion.

The latest addition is something called “right-to-work” laws, which have nothing to do with either rights or work. Instead, they are designed to weaken unions and undermine the ability of working people to act as a counterbalance to the power of corporations and the wealthy.

In this context I answer the question “Should union dues be optional?” First, the question is misleading. The reality is that union membership in Canada is already a choice—a collective one. By majority votes, workers can choose to join a union or they can choose to decertify one. Once a majority of workers in a given workplace has chosen to form a union, making dues optional would be like saying people don’t have to pay taxes if they voted against the governing party.

Second, when contemplating the question, we should consider the source. Right-to-work laws in the US were never championed by workers. Instead, they were the brainchild of employer groups and they were implemented by politicians who were beholden to those groups.

Third, Canadians need to understand that the question has already been asked and answered in the Canadian context.

Way back in 1946, Supreme Court of Canada justice Ivan Rand laid out the “Rand formula,” which has become one of the pillars of Canadian labour relations. Basically, Rand said that if a worker benefits from a union-negotiated contract (in the form of better wages, for example), then that worker should be obliged to pay union dues to help pay for the operation of the union that negotiated the contract. Anything less, he said, would open the door for people to become “free riders.”

Fourth, and finally, we must respond with an emphatic “no” to American-style right-to-work laws because they wouldn’t only be bad for workers—they would also be bad for our economy and our democracy. Economists and political scientists from around the world are increasingly coming to the conclusion that legal frameworks guaranteeing a significant measure of bargaining power for workers are crucial if we want our society to maintain a healthy middle class.

If worker bargaining power is weak, inequality will grow, wages and consumer purchasing power will shrink (bad for the economy) and the political process will become increasingly dominated by the rich (bad for democracy). This is why calls to make union dues “optional” must be resisted. These policies have contributed to the erosion of the American middle class and American democracy. They have no place in Canada.


John Mortimer responds to Gil McGowan

Like so many pro-union lawyers academics, union leaders in Canada claim this issue was settled in 1946 by Supreme Court Justice Ivan Rand. Federal cabinet minister Paul Martin Sr. arranged Justice Rand’s appointment to arbitrate an end to a very violent strike at Ford in Windsor, Ontario.

The union wanted forced union membership to be a condition of working at Ford. Justice Rand expressly denied this: “It would deny the individual Canadian the right to seek work and to work independently of personal association with any organized group. It would also expose him even in a generally disciplined organization to the danger of arbitrary action of individuals and place his economic life at the mercy of the threat as well as the action of power in an uncontrolled and here an unmatured group.”

Justice Rand did rule that all unionized Ford workers involved in that arbitration, whether or not they were actual members, would have to pay union dues.

However, it is necessary to carefully read the full award.  Justice Rand was equally clear that not all unions should have access to forced union dues. He wrote: “I do not for a moment suggest that this is a device of general applicability. Its object is primarily to enable the union to function properly. In other cases, it might defeat that object by lessening the necessity for self-development. In dealing with each labour situation we must pay regard to its special features and circumstances.” In short, not all unions should be able to get union dues from non-members.

Justice Rand, in not awarding forced union membership, recognized “the right to seek work and to work independently of personal association with any organized group.” Article 23(1) of the 1948 UN declaration asserts: “Everyone has the right to work, to free choice of employment…” It is striking that the right to work free of coercion is found in both the Rand formula award and the UN Declaration.

Johannes Morsink’s book The Universal Declaration of Human Rights: Origins, Drafting and Intent is a comprehensive review of the debates and documents that led to the UN declaration and reinforces the roots of the right to work free of coercion. That right has been lost since unions, employers and legislatures sold workers out, enabling the thousands, if not tens of thousands, of collective agreements across Canada that mandate union membership.

Ultimately the right to work is about voluntary union membership, even if a workplace is unionized. Canada appears to be alone in the world in still allowing unions to make membership a condition of employment.

American right-to-work laws, in about half of US states, are about not paying dues if one is not a member.  The US Supreme Court, like the European Court of Human Rights, put an end to forced union membership, on an individual-rights basis. Other US Supreme Court rulings enable non-members in non-right-to-work states to pay only for representation. Allowing unions to make employers take money from a worker’s pay, which the union can then use for political and other non-bargaining purposes, has been held by the European Court and our Supreme Court to be tantamount to forced membership.

Our Supreme Court’s 1991 Lavigne ruling used s. 1 to allow forced union dues to be used for non-bargaining purposes—a Charter violation. Three judges ruled that the “Rand formula violates s. 2(d) of the Charter because it interferes with freedom from compelled association.” Why do mandatory union dues violate Canada’s Charter of Rights and Freedoms? These three judges continued:   “[The] freedom of association of an individual member of a bargaining unit will be violated when he or she is compelled to pay dues that are used to support causes, ideological or otherwise, that do not directly relate to collective bargaining.”

Ultimately, however, those three judges concluded that if a government wanted “forced” union dues to fund causes unrelated to collective bargain-ing, then the Rand formula was a justifiable action—the violation of workers’ rights was justified.

Three other judges did not decide whether or not the Rand formula violated the Charter. But they did rule that if it was a violation, it “would in any event meet the requirements of s. 1 of the Charter.”

The net result is a majority ruling, with six of seven judges invoking s. 1 of our Charter—a “proportionality clause.” The concept is that there are limits to any right and freedom in a democratic society.

The European Court, in its human rights instrument, has a proportionality clause like ours. The difference is that in each ruling about unionized worker rights, that court did not justify the violation. Instead it protected workers from the very same things Justice Rand pointed out in 1946. For now, Canada’s workers cannot count on their Supreme Court. Instead they need legislation that removes the allowances and protections union leaders enjoy with respect to union membership and the uses of union dues.

To take money from a worker’s pay for the union to use for political purposes is  forced membership.


Gil McGowan responds to John Mortimer

John Mortimer claims to be motivated by a desire to protect the rights of working people, but he fails to mention that his organization, LabourWatch, is controlled by a number of notorious anti-union employer associations.

That’s why it’s galling to see him invoke the UN’s Universal Declaration on Human Rights. Article 23(4) of that declaration says that “everyone has the right to form and to join trade unions for the protection of [their] interests.” But Mortimer has spent the past 20 years agitating for policies designed to make it harder for Canadians to exercise those rights.

Likewise, his appeal to the European experience is disingenuous. It’s true that European courts have restricted the practice of “closed shops.” But virtually all European nations have other legal mechanisms designed to protect and promote union bargaining power, such as laws mandating industry-wide bargaining and laws requiring worker seats on corporate boards. If he wants us to be more like the Europeans, by all means, let’s be more like the Europeans. But don’t cherry pick.

Mortimer also leaves the impression that, here in Canada, people are compelled to join unions as a condition of employment. This is simply not true. The Rand formula, one of the central pillars of Canadian labour relations, specifically says that workers don’t have to join unions. What it doessay, is that anyone who benefits from a union-negotiated contract has to pay dues to the union that negotiated it.

This does not make the person in question a member of the union. It simply means that people are not allowed to be “free riders.”

In a similar vein, it is outrageous for Mortimer to say that Canadians are losing their jobs because they refuse to join a union. Outside of the construction sector, these kind of “closed shop” provisions are almost non-existent in Canada. And, within construction, closed shop provisions are simply a reflection of practical realities. Why should a construction union that has won a contract to provide labour for a particular job be forced to employ people who are not part of the union? It would be like telling IBM that they can’t employ their own people to work on a contract they had won with a big client.

When you cut through all the double talk, it becomes clear that people like Mortimer aren’t really concerned about “freedom.” Instead, they’re trying to bring American-style union-busting laws to Canada for two reasons: to lower wages and, perhaps even more importantly, to weaken the political and economic power of working people.

Thankfully, the Supreme Court of Canada has seen through these thinly veiled arguments. The court has concluded that unions and collective bargaining are “social goods” because they help redress the power imbalance between employers and workers; because they improve the wages and living standards of working Canadians; because they promote labour peace by ensuring that worker concerns and grievances aren’t continually swept under the carpet; and because they give ordinary working people a voice on the political stage that they could never hope to have individually—a voice that ensures the interests of the powerful and the wealthy don’t always dominate.

Significantly, the court has also realized that both the right of Canadians to bargain collectively and the social goods that come from giving workers more bargaining power can only be realized by ensuring that unions have the resources they need to do their jobs and the latitude to pursue their goals both in the workplace and on the broader political stage. This is the heart of the “Canadian compromise” embodied in the Rand formula—and it helps explain why, in the words of a recent Maclean’s magazine article, “the American Dream [has] moved north.”

American states with “right-to-work” laws have lower wages and median household incomes ($1,500 and $6,400 respectively); higher workplace fatality rates (because union oversight is reduced); lower rates of economic growth (because con-sumers have less money to spend); substandard public services (because weaker unions mean weaker progressive politics); higher levels of inequality (one Harvard study suggests that as much as one-third of the growth in US inequality can be attributed to the weakening of unions); and lower rates of business investment (because companies don’t want to invest in jurisdictions with crumbling infrastructure and poorly educated workforces).

Conversely, the World Bank, hardly a radical leftist organization, has found that countries that foster worker bargaining power and promote collective bargaining have lower rates of unemployment, inequality and inflation; higher rates of economic growth; higher productivity; speedier adjustments to economic shocks; and a smaller wage gap between men and women.

The American middle class is on life-support because of right-to-work legislation. The question is: Why would we Canadians want to do this ourselves?


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