Click here to view the entire decision.

Style: Michael Nolin v. Wal-Mart, UFCW, Certain Employees et al
File: British Columbia LRB No. B123/2006
Case: 52968 and 53378
Date: May 30, 2006

This BCLRB decision deals with a UFCW certification drive at a Wal-Mart store in Dawson Creek, BC. The UFCW filed unfair labour practice complaints against Wal-Mart, some Wal-Mart employees and a lawyer, Michael Nolin from Saskatchewan.

After Nolin’s father, a Wal-Mart employee, expressed concerns about union organizing tactics, Nolin began acting for some Wal-Mart employees before the Saskatchewan Board. Last year he was contacted by a Dawson Creek employee to whom he subsequently wrote a letter.

In its May 30th decision, the BCLRB reviewed the letter written by Michael Nolin that incorrectly explains BC labour law and makes a number of statements about the UFCW and about Wal-Mart. Nolin’s letter contained references to both www.labourwatch.com as well as Members for Democracy (MfD) - a union reform website run by current and former UFCW members.

In its decision, while the Board quoted extensively from Nolin's letter, when it came to the websites the Board simply wrote that the letter "urged employees to visit the two websites," without actually naming either LabourWatch or MfD. The Board also omitted any reference to the four LabourWatch FAQs attached to Nolin's letter claiming that Nolin's letter "repeated information found on two websites". Having now reviewed the letter, this statement in the decision is not at all accurate. The letter refers to the many pages of attachments downloaded from the websites. The Board only acknowledged that Nolin's letter was sent "with some other documents."

In addition to filing a complaint against Nolin, the Union also filed a complaint against some Wal-Mart employees who the UFCW alleged distributed the Nolin letter and attachments at a meeting in the home of a Wal-Mart employee. The meeting was attended by Union supporters and opponents who held a discussion on unionization.

Describing the meeting as “relaxed,” the Board dismissed the Union’s complaint in finding that no employee acted in a coercive or intimidating fashion by distributing Nolin’s letter at this meeting. They also noted that the employees never distributed the letter at the Wal-Mart store.

The Board cleared Wal-Mart of any wrong-doing as well in rejecting the complaints filed by the UFCW.

However, the Board found that Nolin contravened the Labour Code as a result of statements made in the letter to the Wal-Mart employees. For example, Nolin made allegations about UFCW organizing tactics that he had not looked into. He also asserted to the employees that if they unionized their store might close.

The Board found some of Nolin’s statements to be coercive and intimidating. Nolin and his law firm were ordered to pay to have the decision mailed to the homes of all current Wal-Mart employees in the Dawson Creek store and for a subsequent UFCW mailing.

LabourWatch emerged from the Board’s decision unscathed but also unannounced. This is the third case in a row that a Labour Board has heard evidence and occasionally complaints against LabourWatch – and in dismissing the union complaints – the Board failed to acknowledge our name.

Click here to view the entire decision.

An employee of Varsity Common Garden Market, a grocery store operated by a Sobey's franchisee, made an application for decertification in 2004. The United Food and Commercial Workers (UFCW) complained that the applicant employee in Saskatoon had used LabourWatch to understand decertification and to find a lawyer listed on the website to help her. It was the first time we are aware that a Board heard such complaints and evidence about the use of the LabourWatch website under oath during a decertification hearing. The Board found no employer interference and ordered that a vote take place on April 25, 2005.

The union continued the fight against the employee's democratic vote and statutory right of decertification. First they sought reconsideration of the April 6, 2005 decision. The vote was sealed pending the outcome of a Union reconsideration application and a Union Objection to Vote application.

In September of 2005, the Board dismissed the Union's reconsideration application (LRB File 181-04 & 227-04).

In October of 2005, the Board dismissed the Union's objections to the April 25 vote and ordered the vote counted (LRB File 227-04).

When the vote was finally counted, the employees had voted to be union-free again.

Click here to read all three SLRB Decisions and other documents.

The Newfoundland & Labrador Labour Relations Board rejected a Union complaint that an employer's reference to LabourWatch.com represented an Unfair Labour Practice. The Board dismissed the complaints in a one page order without reasons. The Union filed two complaint pleadings.

The Newfoundland and Labrador Association of Public and Private Employees (NAPE) complained to the Board that a Newsletter circulated by Labrador Motors to its employees during a certification drive represented "intimidation and/or threats and/or coercion by the Employer." The Union sought a "cease and desist" order and a remedial certification "without counting the vote".

The Union did not object to the Newsletter directing employees to the Labour Board and the Union for more information. NAPE took exception to the Newsletter referring employees to LabourWatch.com.

The Newsletter simply said the following, "...a website devoted to answering employee questions on this issue can be found at www.labourwatch.com."

NAPE's complaint was that, "...the Employer's reference to the LabourWatch website in its newsletter ...in itself constitutes an unfair labour practice ...(and) that in the case of Wal-Mart" (BCLRB 156/2003), "the BCLRB considered the issue of the distribution of documents downloaded from the LabourWatch website, www.labourwatch.com ...(including) two pages created by the distributor of the materials as well as a union membership revocation form. In considering the nature of the material the BCLRB referred to it as 'anti-union material'."

In its pleading, NAPE also cited a New Brunswick case, Bonté Foods ( IR-036-03: 07/22/03 ), where the New Brunswick Labour and Employment Board noted that, " ...the neutrality of the labourwatch.com website has yet to be determined".

NAPE did not succeed in its attempt to use the New Brunswick and British Columbia cases to convince the Newfoundland and Labrador Board that Labrador Motors committed an Unfair Labour Practice. The Board found that the Employer "has not violated the Act as alleged" and rejected the complaint in a simple one-page order that made no reference to LabourWatch.

A copy of NAPE's pleadings, the employer's reply and the Board's dismissal are on the website in the Decisions section of About Us. We have not included a second Board Decision that is 20 pages long, that deals with issues around a terminated employee. There are no references to LabourWatch in it and this second Union complaint was also dismissed.

Click here to view the entire decision.

This New Brunswick decision deals with a Union's Unfair Labour Practices complaint against an employer, Bonté Foods, who referred employees to our website in a letter that attached a copy of our Frequently Asked Questions (FAQ's) download during a union drive. As a result of reading this, some employees went to our website obtained our Petition and Cancellation Download. The union had over 60% support and the opportunity for an automatic certification (no secret ballot vote). The employee Statements of Desire might have led to a vote but the Board in this case found that the FAQ's contained a "hyperlink" from which the employees "obtained" the Petition. Given that paper cannot hyperlink to the internet to another document we find this aspect of the Decision troubling. The Board goes on to state: "the circulation of a document to employees that specifically provides direct reference to a petition ... is a violation of section 3(5) of the Act, in that amounts to undue influence." Some question whether it is possible to violate section 3(5) and at the moment we are evaluating the potential issues with the Board's Decision. In the meantime the two New Brunswick Decisions at this time delineate the Board's view of two different methods of communicating with employees in order to help them at least find more information than they can get from a union or from the Board.

Click here to view the entire decision.

This first New Brunswick decision deals with a United Steelworkers complaint against an employer, Apex Services, who referred employees in 3 letters to our website during a union drive. The employer also referred employees to the Labour and Employment Board for more information. The Decision deals with an employee petition opposing unionization and subsequent employee Membership Cancellation Forms. Both documents came from our website according to the Decision. The union failed to convince the Board in this case that the employee Statements of Desire were not voluntary and that management was inappropriately involved. The Union's card support of over 60% and an automatic certification was pushed below 50% by the employee's documents so a vote was held. The Union and its employee supporters lost the vote and the majority of voting employees desire to remain union-free was the final outcome.

Click here to view the entire decision.

This BCLRB decision discusses the use of LabourWatch during an organizing drive as a result of an employee downloading our materials, appending her own materials and distributing them in the work place, on work time and not being stopped by management. It was written by the same Vice Chair that wrote the first ever decision about LabourWatch. Our May 2003 Newsletter content is included with the download of the decision and we have also included the 53 paragraphs related to LabourWatch out of the total 221 paragraphs.

Click here to view the entire decision along with the summaries prepared by LabourWatch.

This BC LRB decision discusses the use of LabourWatch during an organizing drive as a result of the employer referring employees to the site in a memo. It is the first decision that we are aware of and came 22 months after our website became available. This decision held that "nothing turns on the content of the site alone in this case." Further, ". . . the information on the website is neutral" by explaining the Code, the Regulations, etc. but "it is not pristine in its neutrality from the perspective that it is apparently limited to offering a countervailing view to what information an organizing union may be prepared to give employees." We note that our web site directs employees who want a union to the many excellent union web sites that we link to as it is not our goal to duplicate what is readily available to employees.

Click here to view the entire decision along with a summary prepared by LabourWatch.

Click here to read our online PDF version of the Canadian Charter of Rights and Freedoms.

This version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the Department of Justice's online version

This is the offical version Canadian Charter of Rights and Freedoms on the Justice Department's website

Click here to read our online PDF version of the Canadian Bill of Rights.

This version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the Department of Justice's online version

The Alberta Labour Relations Board rules against union Member Warren Armstrong, upholding his suspension from the union for failure to pay a fine levied by the Boilermakers union for working non-union.

Armstrong's position was that the union's imposition of a fine was coercive and improper. The Alberta Labour Board did not agree - "With respect to the improper motive for the imposition of discipline we find none. While banning work for non-union contractors at initial blush appears to be a restraint of trade, the fact is that is precisely what a Union is supposed to do."

Click here to view the entire decision.

The Alberta Provincial Court rules in agreement with other Canadian jursidictions that Unions cannot enforce disciplinary penalties in a court of law.

Click here to view the entire decision.

Click here to view the entire decision.

Style: Jeffery Birch and April Luberti v. Union of Taxation Employees Local 70030
Case: Ontario Superior Court of Justice
Case: 06-CV-35925
Date: October 17, 2007

In a significant decision limiting the rights of trade unions, the Ontario Superior Court of Justice has ruled that the courts will not enforce financial penalties levied by trade unions against members who choose to cross a picket line during a legal work stoppage. The ruling in Birch and Luberti v. Union of Taxation Employees Local 70030 will make it more difficult for trade unions to use the threat of fines and other penalties to enforce picket line solidarity. It will also enhance the right of employees to decide for themselves whether they wish to participate in a work stoppage.

Background

During a seven day PSAC strike in 2004, numerous members of the Union of Taxation Employees Local 70030 (Union), a division of PSAC, decided to cross the picket line and report for work. The Union responded by imposing a fine on each member equivalent to the employee's gross salary for each day worked during the strike. Many members refused to pay the fines, so the Union resorted to Ontario's Small Claims Court to recover the fines. The Union relied on a provision of its Constitution that purported to authorize the imposition and collection of fines.

Jeffrey Birch and April Luberti were two Union members who crossed the picket line, were fined by the Union, and were subsequently sued by the Union in Small Claims Court. Instead of defending in Small Claims Court, Birch and Luberti jointly brought an application in the Superior Court of Justice seeking two orders: (1) a declaration that the Ontario courts will not enforce the Union's financial penalties, and (2) an order dismissing the Union's lawsuits in Small Claims Court. Birch and Luberti were represented in the Superior Court of Justice by John Craig and Richard Sinclair of Heenan Blaikie LLP.

The Decision

Justice Smith ruled in favour of Birch and Luberti on all the issues and granted the orders they were seeking. Justice Smith based his decision on the following considerations.

First, neither Birch nor Luberti had availed themselves of an internal appeal that was permitted under the Union's Constitution. The Union argued that failure to take advantage of an internal Union appeal meant that Birch and Luberti could not seek the assistance of the courts. Justice Smith disagreed, pointing out that the Union had resorted to the courts by suing Birch and Luberti. Birch and Luberti were entitled to defend themselves regardless of the existence of an internal Union appeal mechanism.

Second, Justice Smith confirmed the common law position that Ontario's courts will not enforce penalty clauses in contracts. The Union's Constitution was effectively a contract between the Union and its individual members. Therefore, if it contained a penalty clause, then that clause would not be enforceable in the courts. Justice Smith considered the specific provision of the Union Constitution at issue. He concluded that the provision permitted a financial penalty to be imposed that was excessive since the penalty (i.e. gross salary for the time worked) bore no relation whatsoever to actual losses suffered by the Union as a result of members crossing the picket line. The financial penalty therefore fell into the category of penalties that will not be enforced by the courts.

Third, the Union argued that the financial penalties were not unconscionable in the labour relations circumstances and therefore should be enforced in the courts. Justice Smith disagreed, finding that the financial penalties were "extremely onerous" and based on speculative assumptions. Significantly, he rejected the idea that a financial penalty for picket line crossing could be based on the supposed financial benefit of such crossing to the employer. The Union also asserted that the financial penalties were justifiable to deter "free riders" who would benefit from strike activity while continuing to report to work. In response, Justice Smith observed that trade unions should use strategies other than onerous financial penalties to encourage respect for picket lines (e.g. persuasive information campaigns and better strike pay).

Fourth, Justice Smith rejected the submission that the Public Service Labour Relations Act (PSLRA) authorized the imposition of financial penalties for crossing a picket line. The relevant provisions of the PSLRA are very similar to provisions of the Canada Labour Code. At best, these PSLRA provisions refrain from making it an unfair labour practice for unions to levy financial penalties against their members. However, there would have to be a clear statutory provision authorizing such penalties before the courts would enforce them.

Click here to view the entire decision.

This is a summary of Supreme Court of Canada precedent concerning the use of forced union dues for political, social and other non-bargaining purposes Click here to read.

Click here to view the entire decision and LabourWatch summary.

Style: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia
Case: Supreme Court of Canada 2007 SCC 27
Docket: 30554
Date: June 8, 2007

This June 8 2007 Supreme Court of Canada decision reverses 20 years of precedents by concluding that the right to collective bargaining is encompassed by Canada’s Charter of Rights and Freedoms - Section 2(d), Freedom of Association.

Background

In the 1990’s the New Democratic Party (NDP) were the Government of the Canadian province of British Columbia. The NDP Government decided it needed to or at least needed to appear to be reducing spending. The government stated that public sector bargaining of wage increases were limited to “zero, zero and two”. It turned out that the increases, for example, for the unionized employees covered by the CA’s involved in this case were in fact “zero, zero and eleven”. Clearly, the NDP Government misled the taxpayers of BC to the amount of $1.3 billion.

During the provincial election campaign of 2001, the BC Liberals appeared top have a commanding lead in the polls. It was generally known that the NDP had given what some called sweetheart deals in the end times of their tenure as the Government. The BC Liberals leader, Gordon Campbell in a meeting with the internal union newspaper, just days before the election, promised to respect the CA’s or said he would not rip them up. The BC Liberals won a massive majority days later. Subsequently, claiming a health care funding crisis the BC Liberals broke their clear campaign promise to these union Members.

In January 2002 the Government of British Columbia enacted Bill 29, Health and Social Services Improvement Act. This was intended to remove limitations in the collective agreements of public sector health care employers.

Of particular note, Bill 29 voided clauses that required public sector health care employers to consult the union prior to contracting out non-clinical services and it rewrote “Layoff and Bumping” provisions.

The legislation was described by union officials as a “… law that restricted and gutted the bargaining rights of health care workers”.

After Bill 29 was upheld by British Columbia Courts, a number of health sector and public sector unions, as well as eight nurses took it to the Supreme Court of Canada claiming it violated the Canadian Charter of Rights and Freedoms in particular Section 2(d) - the right to Freedom of Association, and Section 15 - Equality.

The Decision

On June 8, 2007 the Supreme Court of Canada delivered a decision which found that three sections of Bill 29 violated the freedom of association provision of the Charter but did not find it to have violated the Equality provision (Section 15). Thus, the following sections of Bill 29: 6(2), 6(4), and 9, were declared unconstitutional. At the same time the Court gave the Government one year to find a solution.

The Court acknowledged that this decision reversed 20 years of Supreme Court of Canada rulings that had said there is no Charter right to collective bargaining. The Court appears to have a number of bases for reversing its own rulings:

Firstly, it essentially criticized prior decisions, even though current Members of the Court participated in them. The Court stated that the prior decisions did not withstand “principled scrutiny”!

We conclude that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected.

Secondly, the Court also says that it is time for Canada to improve its positioning with respect to our country’s international obligations. The decisions states:

Under Canada’s federal system of government, the incorporation of international agreements into domestic law is properly the role of the federal Parliament or the provincial legislatures. However, Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees.

The primary international obligation the Courts speak of is the International Labour Organization’s (ILO’s) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 68 U.N.T.S. 17 (“Convention No. 87”). Which Canada signed 35 years ago.

Thirdly, it appears that the Court was impacted by its finding that the Government made little to no effort to consult with the unions who would be so significantly impacted by the legislation. The Court noted that the Minister in charge had only telephoned a union representative 20 minutes before Bill 29 was introduced in the legislative assembly to inform the union that the government would be introducing legislation dealing with employment security and other provisions of existing collective agreements.

The long term impact of this new limited right to the process of collective bargaining is hard to predict. Unions have high hopes. Other experts suggest its impact will be felt largely in public sector bargaining by limiting unilateral action by governments through the legislative power they have that private sector employers do not have.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

One would have to wonder what would have happened if the British Columbia Government had, even knowing that the proposed changes might well be rejected out of hand by the unions, made the effort to present them to the union anyway. The Government could have repeatedly reached out to the unions, made proposals and made the case on the financial crisis to the unions and to British Columbians. Chances are the union would have rejected these efforts out of hand. For example, maybe the unions would have left the meetings after 5 minutes and headed straight to the press to grandstand. This Government effort at collective bargaining might have sealed the union’s fate and no such decision as this would have been issued. Clearly the Court took umbrage at a Government that had a massive majority and had the audacity to only tell the union leaders minutes before introducing legislation that was essentially guaranteed to pass. It is also very likely that the Government’s legal advice, well founded on 20 years of what they would assume are principled decisions of our highest court.

Finally, the 135 page decision goes to considerable effort to educate the reader on the Court’s view of the history of the labour movement in Canada. Some experts question the legitimacy of this section. The Court states:

Further, the right to collective bargaining is neither of recent origin nor merely a creature of statute. The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context. .

Association for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter. The protection enshrined in s. 2(d) of the Charter may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining. .

To find a Charter right that is not clearly enumerated the Court must establish that collective bargaining is a fundamental right and not a creature of statute. In 1949 Canada began to have statutes setting out collective bargaining. Prior to this year, there were statutes that banned certain organizations and essentially saw collective bargaining as an illegal restraint on trade.

It is remarkable that the Court could make the above statements given the actual historical record. From the 1850’s to 1949 the labour movement went through a great deal of difficulty including being considered illegal in certain respects. It might be fair to say that the Court’s finding that “long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society” does not withstand principled scrutiny.

Click here to view the entire decision and LabourWatch summary.

Click here to refer to the Health and Social Services Delivery Improvement Act - (Bill 29)

Judge Baynton's July 2004 Judgment is being appealed by the Union at this time, but it has received significant publicity in Canada because it criticizes the conduct and rulings of the Saskatchewan Labour Relations Board in very clear terms and because it raises the possibility of future Charter challenges. The future Charter issues around freedom of expression relate to our Guiding Principle #8 which deals with the importance of employees being able to hear from their employer in order to balance the wide latitude that unions have today to communicate with employees.

Click here to view the entire decision.

This decision addresses the basic question of whether a union member may be personally liable to other members in a breach of contract action based on the terms of the union constitution. This requires an analysis of the nature of the obligations that exist between members of a trade union.

Click here to view the entire decision.

Under the Labour Relations Act, a trade union had an unfettered and unqualified status as a legal entity for the purposes of suing and being sued. However, the judge correctly concluded that the fines were not debts. Although the Association's constitution considered the fines to be debts, there was no fixed amount or any agreed method of quantification. The fines were financial penalties, and were not intended to compensate the Association for loss. Therefore, there was no jurisdiction under the Small Claims Act. There was no determination of the public policy issue.

Click here to view the entire decision.

Click here to view the entire decision and LabourWatch commentary.

Style: Regina v. Advance Cutting and Coring
Case: [2001] 3 S.C.R. 209; [2001] S.C.J. No. 68; 2001 SCC 70;
File: 26664.
Date: 2000: March 20 / 2001: October 19.

This case deals with legislation in the Canadian province of Quebec that effectively forces construction workers to become and remain Members in one of five unions in order to obtain and keep employment on construction work sites in Quebec.

In summary, the Supreme Court of Canada decided (8-1) that there is a negative right to not associate under the Canadian Charter of Rights and Freedoms Section 2d) – the Right to Freedom of Association. The Court also decided (5-4) that the Quebec legislation violated the right to not associate. However, the Court ultimately decided (5-4), under Section 1 of the Charter, that the Quebec legislation was a justifiable denial of that right in a free and democratic society given the history of labour relations in Quebec’s construction industry.

Background

During the construction of Expo 1967 in Montreal and elsewhere more generally, construction employees and employers in Quebec faced violence and vandalism. Starting at least in the 1960’s evidence of significant levels of corruption was gained more profile. It included: union actions against their own Members (sale of jobs, blackmailing, usury, physical violence); unions against other unions (physical violence, attempts to control job sites), unions against employers (sale of manpower through the hiring hall, kickbacks, payoffs), and employers against government officials (bribes). During 1972 violence in Quebec’s construction sector was valued at 300 million dollars.

At the same time, Quebec police, governmental authorities and the courts did not ensure that the rule of law and the Criminal Code were effectively enforced to protect Quebecers.

In 1968, in response to this violence and corruption the province abandoned this system and adopted Bill 290, a province-wide approach with a single agreement that covers all trades and all construction employers in the province. This legislation was changed numerous times but most importantly in 1975, after serious violence at the James Bay Power project. Prior to 1968 the Quebec construction industry was covered for the most part by 15 separately negotiated labour agreements for various regions. In 1974, the Quebec Government established a Royal Commission of Inquiry into Union Freedom in the Construction Industry, known as the Cliche Commission.

This Commission was led Quebec Provincial Court Justice Robert Cliche, and included, Brian Mulroney, (then a labour lawyer in Montreal and subsequently Prime Minister of Canada from 1984 - 1992). The Commission recommended changes, some of which were included in Bill R20 which was intended to strengthen the law to deal with the recurring violence and vandalism. Some observers say that some changes were also included to make legal challenges to the law more difficult.

The Decision

In Advanced Cutting and Coring, the appellant employer was charged with hiring employees who did not have the required competency certificates contrary to the Quebec Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry (the "Construction Act"). The appellants asserted that workers could not obtain the competency certificates without becoming members in one of the unions listed in the Construction Act. The appellants claimed this requirement was unconstitutional as it breached employees' freedom of association as guaranteed in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter").

The Construction Act provided a mechanism where each certified construction worker - identified by the Commission de la construction du Quebec (the "Commission") - would select one of five union groups to act as his or her bargaining representative. The union group or association of groups that represented at least 50 percent of certified construction workers would then be granted the power to negotiate collective agreements.

While the Supreme Court of Canada had acknowledged the negative right not to associate in their Lavigne decision (1991), it had also accepted a democratic rationale for putting limits on the right of non-association. In Lavigne, the Court noted that some forms of compelled association might be compatible with Charter values.

In Advanced the Supreme Court of Canada decided (8-1) that there is a negative right to not associate under the Canadian Charter of Rights and Freedoms 2 d) - Right to Freedom of Association. The Court also decided (5-4) that the Quebec legislation violated the right to not associate. However, the Court ultimately decided (5-4), under Section 1 of the Charter, that the Quebec legislation was a justifiable denial of that right in a free and democratic society given the history of labour relations in Quebec’s construction industry.

The majority judgment suggested courts should be mindful to avoid second-guessing legislatures on controversial and complex political choices. It noted the Quebec legislation was attempting to address problems that had become a pressing social and economic issue.

The majority judgment found that the method chosen was the fairest and most effective way to determine the representativeness of the unions and to balance employee involvement in the union (as compared to the Rand Formula, whereby an employer deducts a portion of the wages of all employees within a bargaining unit, union Members or not, to go to the union as union dues – also referred to by some as "check off").

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

Surely it is troubling that the highest Court in the land, with this ruling, has enabled the abrogation of the rights of Canadians because the police, the lower courts, crown prosecutors and the government departments responsible for the courts and police are not willing to enforce the law. Instead, construction employees have a Charter right that non-construction workers enjoy stripped away through forced union Membership as a condition of employment. The Court chose not to find that the police and judicial system of a whole province should instead ensure the rights of all employees by striking down the legislation and saying, as in many countries of the world, that mandatory membership and conditional employment are a violation of human rights.

It should then come as no surprise that today in Quebec, there is no official discussion about the ongoing existence of violence, vandalism and intimidation in the construction sector. Unionized employees, their local union and related employers from one part of the province who seek or take on construction jobs in another part of the province find their truck vandalized, for example. Similar experiences exist for operators from outside the province of Quebec who take on work in the province. It may not be at its historical levels, but it remains a fact of construction life in Quebec.

Click here to view the entire decision and LabourWatch commentary.

The Court ruled that the Union did not have the power to enforce its rules in a court of law as an unregistered Union at common law. Further, while the Small Claims Act did not specifically proscribe a claim to collect a penalty, penalties which were purely punitive rather than compensatory, such as the penalty in this matter, were unenforceable by the courts at common law.

Click here to view the entire decision.

Among numerous other things, this decision found that the Union had no jurisdiction to subject employees who were not members of the Union to the disciplinary policy, and the penalty of fines. Also, the constitution of the Union did not satisfy the requirements of Section 36(5) regarding assessment of fines, and thus the fines were disallowed.

Click here to view the entire decision.

Click here to view the entire decision and LabourWatch summary.

Style: Lavigne v. Ontario Public Service Employees Union
Case: Supreme Court of Canada [1991] 2 S.C.R. 211
File: 21378
Date: 1990: June 18, 19; 1991: June 27.

This case dealt with a challenge to the Colleges Collective Bargaining Act because of its incorporation of the Rand formula whereby an employer deducts a portion of the wages of all unionized employees in a bargaining unit, union Members or not, to go to the union as union dues ("checkoff") and in particular, what the union uses these dues for. The issue was the use of dues for purposes such as support for political parties or causes in Canada and other countries that the unionized employee objected to being associated with via his dues.

Ultimately the Court upheld the union’s ability to collect full dues from non-Members of a union in a unionized workplace and the union’s ability to use dues for political and other purposes that the individual employee might be opposed to.

Background

Francis (Merv) Lavigne had been a teacher at a provincial post secondary educational institution – a community college in Ontario. Lavigne had not voluntarily become a Member of the Ontario Public Services Employees Union ("OPSEU") and at the time, the Collective Agreement did not require him to become an OPSEU Member as a condition of employment. However, he was still required to pay fees (dues) to the union pursuant to, what is known in Canada as the Rand formula.

Under OPSEU's constitution, it was allowed to use the dues towards the advancement of the "common interests, economic, social and political, of the members and of all public employees, wherever possible, by all appropriate means". OPSEU put some of the money towards interests such as disarmament campaigns, the very militant National Union of Mine Workers in the United Kingdom, a health care workers' union in Nicaragua, and sponsored events for the New Democratic Party – a Canadian political party at federal and provincial levels of government that pursues socialist principles.

The practice was and is still not unusual for unions across Canada, but Lavigne opposed many of the causes supported by OPSEU with what he saw as his money. He brought an application for declaratory relief against the union on the basis that the Colleges Collective Bargaining Act, which gave the union the power to allocate funds to causes of their choosing, violated his right under the Canadian Charter of Rights and Freedoms, to freedom of association under section 2(d) and under 2(b) his freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication of the Charter.

The Decision

The Court unanimously held that the Charter did apply because in this case the obligation to pay dues can be attributed to government. However, it also decided not to grant Lavigne the relief requested, but for varying reasons. Lavigne is a very difficult decision to read because there are four separate judgments. It appears that the court was very divided in its rationale.

Some observers say that the majority decision held there was a violation of Lavigne’s freedom of association (section 2(d) of the Charter) - that the Rand formula interferes with the freedom from compelled association – what is generally known in international human rights terms as the negative right of non-association. However, the majority ruled that such interference was justified under section 1 of the Charter. The majority decision held that the use of the union dues did not constitute forced expression, and so there was no violation of the freedom of expression.

Section 1 states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The minority decision held that there was no violation at all, but if there was it would be saved under Section 1. The minority decision disagreed with the majority by finding the use of the union funds did have expressive content, but the payments did not imply that Lavigne supported any of the union's causes and did not prevent him from expressing his own personal views. Accordingly, there was no violation of the freedom of expression.

Lavigne is often cited for establishing the negative right not to associate as a Charter right in Canada. Specifically, the majority judgment states: "Recognition of the freedom of the individual to refrain from association is a necessary counterpart to meaningful association in keeping with democratic ideals. Thus, freedom from forced association and freedom to associate should not be viewed in opposition, one "negative" and the other "positive". They are not distinct rights, but two sides of a bilateral freedom which has as its unifying purpose the advancement of individual aspirations.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of jurisprudence differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced union Membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

In 2007, Canada increasingly stands alone in the world in allowing such violations of employee rights of non-association and freedom of expression. As a result of judicial rulings or legislation, workers in many countries but particularly all of the European Union, Australia, New Zealand and parts of United States are protected from forced union membership as a condition of employment. As such, unionized employees, who may be a member of a bargaining unit in a unionized workplace, but who do not choose to additionally become Members of the union, either do not pay dues at all or they pay dues that are related to the administration of the collective agreement that governs their employment only and not for other union interests such as the support for political parties and social causes the union leaders choose to support on behalf of their actual Members.

Lavigne was supported in his case by a Member of the Canadian LabourWatch Association – the National Citizen’s Coalition. Many unions succeeded in getting intervenor status and in the end the Court also awarded costs to the unions that represented hundreds of thousands of dollars that the NCC raised and paid on Lavigne’s behalf.

Click here to view the entire decision and LabourWatch summary.

Click here to view the entire decision.

The appellant is a trade union, whose membership includes persons employed by Eastern Provincial Airways (herein referred to as the employer) an air carrier with business premises, amongst other places, at Gander, Newfoundland. The appellants are residents of Gander, and at all times material to this action were employees of the employer and members of the appellant union. The employer operates in a field of federal jurisdiction and its labour relations with the appellant are governed by the Canadian Labour Code, Revised Statutes of Canada, 1970, Chapter L-1, under which the appellant was certified as a bargaining agent for a unit of its employees including the respondents. The appellant had had in effect a collective agreement between itself and the employer, but had been unsuccessful in negotiating a new agreement upon its expiry. In consequence, the appellant had declared a strike against the employer. In the course of the strike, which endured from January 7, l983 to March 16, 1983, certain of its employees in its bargaining unit, including the respondents, failed to comply with a request made to them by the appellant to desist from work at the employer's premises during the strike period, but continued their employment duties. In so doing, the respondents crossed the picket lines established by the appellant at the employer s premises. The respondents were duly charged by the appellant with commission of acts of misconduct contrary to the rules of its constitution, and upon following procedures outlined therein the respon