2010 Karen Selick
An edited version of this article first appeared in the November 25, 2010 issue of The Lawyers Weekly.
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A Little Orwell with Your Union Dues?
Historically, labour unions have done a remarkable job of persuading the general public that unions toil for the benefit of the average worker. But in a case unfolding in the Alberta Court of Queen’s Bench, a group of 29 average workers has rejected that thesis, and the union doesn’t like it.
The heretics are employees of Old Dutch Foods Ltd., a Canadian company that manufactures potato chips. The company was unionized in 1971 by the United Food and Commercial Workers Union (UFCWU). Throughout four decades of collective bargaining, Old Dutch has never agreed to force its workers to join the union, or to contribute union dues. In labour law parlance, the company insisted on remaining an “open shop” and rejecting the practice of “mandatory dues check-off”.
The latter, more commonly known as “the Rand formula” from its 1945 inauguration by SCC Justice Rand, requires all employees in a unionized workplace to pay union dues, even if they choose to spurn union membership. It’s supposed to prevent workers from “free riding” on the union’s efforts to improve their lot.
Six provinces and the federal government have made the Rand formula mandatory through legislation. Four provinces, including Alberta, have not.
In April, 2009, the UFCWU took Old Dutch before the Alberta Labour Relations Board (ALRB) seeking an extraordinary remedy: a declaration that Alberta’s failure to incorporate the Rand formula into law violates the freedom of association guarantee in subsection 2(d) of the Canadian Charter of Rights and Freedoms.
In a ruling that stands the concept of freedom of association on its head (UFCWU Local 401 v. Old Dutch Foods Ltd., 2009 CanLII 61316), the ALRB granted the union’s request.
Alberta’s Attorney General has sought judicial review of that decision. Meanwhile, the 29 Old Dutch employees have sought and obtained party status (Alberta (Attorney General) v. UFCWU Local 401, 2010 ABQB 455). The union was infuriated by this decision that will allow the workers to speak for themselves, and has filed an appeal— an action that rather tends to corroborate the 29 employees’ concern about how congruent the union’s interests are with their own.
But on to the main issue: freedom of association. Existing jurisprudence on this subject is labyrinthine and somewhat opaque, but it seems safe to say that the Supreme Court of Canada has declared at least twice that freedom of association under the Charter also includes the logical corollary: the freedom not to associate.
Faced with that case law, the ALRB nevertheless contrived to reach the astonishing conclusion that provincial legislatures are constitutionally compelled to force individual workers to either join unions or—tantamount to the same thing—pay union dues just as members do. How’s that again? Freedom is compulsion? Orwell, anyone?
The decision meanders around through concepts of group rights and majoritarianism, eventually declaring that “the choice made by the majority of employees to have a bargaining agent” somehow trumps the choice of individuals not to have one.
But if subsection 2(d) of the Charter is to mean anything sensible at all, surely first and foremost it must guarantee the rights of individuals not to be compulsorily assimilated into larger groups merely by being outvoted. After all, if two men corner a woman in a dark alley and force her to have sex with them because they, the majority, have voted in favour of it, that would still be rape, not the exercise of their group right to freedom of association.
Besides, the supposed trumping of dissenter’s choices by the majority’s choice is built on a false dichotomy. The two choices are not incompatible. They could co-exist, in the appropriate legal environment. The majority of employees could choose to have a bargaining agent and the minority of employees could simultaneously choose not to. It is only the state of labour law in Canada that generally prevents this from happening.
The UFCWU argues that the law compels it to provide representation for all employees, even non-union members, so that’s why non-members should be compelled to pay union fees. But this is merely an example of one bad law begetting another. Instead of compounding the mistake and granting the union’s request, the more sensible course of action would be to repeal the union’s obligation to provide services for non-members.
Unions also argue that they need the Rand formula for “security”, so that they needn’t worry about their revenues and can focus their attention on collective bargaining. But the corporations with whom they bargain have no such security. They have to compete to win customers’ business. They have to find the best combination of products and prices that will persuade consumers voluntarily to part with their money. Why shouldn’t unions have to do the same?
Recent court decisions have moved European labour law significantly in the direction of greater freedom for individual employees, even as the Old Dutch case now seems to be moving Canada in the opposite direction. In a 2006 case called Sorensen, the European Court of Human Rights declared mandatory union membership to constitute a violation of the freedom of association guarantee in the European Convention on Human Rights. As a result, 47 European countries no longer have closed shop laws. Another decision called Evaldsson essentially prohibited unions from collecting fees from non-members if those fees were going to be used or capable of being used for political purposes. This is the opposite result from the SCC’s 1991 decision in Lavigne v. OPSEU  2 S.C.R. 211.
Watching Canadian unions attempt to buck the European trend to greater employee freedom, one can’t help but conclude that the unions now exist to serve their own vested interests and maintain their empires, rather than serving the interests of the workers they are supposed to represent.
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December 12, 2010