Prince Edward Island  -  No Industry Selected

In Decisions and Legislation we have multiple sections - Decisions About LabourWatch, Canadian Decisions and Legislation and finally multiple sections for International Decisions and Legislation. All sections contain decisions and legislation that , in some way relate to our Guiding Principles.

Decisions about LabourWatch

Below you will find labour relations board or court decisions that we are aware of that deal with the use of our content or our website by employees, employers or unions. In some cases we provide a summary of the decision and you can also download the copy of the decision we keep online.

Croisières AML inc.
TAT Dossiers : CQ-2016-4982, CQ-2016-5365, CQ-2016-5370,CQ-2016-5371, CQ-2016-5372 - January 18, 2017
Certification
Style
Syndicat des marins, du divertissement et des métiers alliés Anthony Côté Nicolas Ouellette-Therrien Parties demanderesses c. Croisières AML inc. Partie défenderesse
File
TAT Dossiers : CQ-2016-4982, CQ-2016-5365, CQ-2016-5370,CQ-2016-5371, CQ-2016-5372

Summary

Bakelaar and Vanderzwaag Construction
Ontario Labour Relations Board Case No: 0066-15-R - January 13, 2017
Decertification
|
Application for Termination
Style
Lawrence Bakelaar, Applicant v the Labourers' International Union of North America, Local 607, Responding Party v K. A. Vanderzwaag Construction Inc., Employer
File
Ontario Labour Relations Board Case No: 0066-15-R

Summary

Woolastook (Orchard Long Term Care)
New Brunswick L&EB No. IR-030-16 - December 12, 2016
Certification
|
Application for Certification
Style
Woolastook Long Term Care Facility (Orchard View Long Term Care)
File
New Brunswick L&EB No. IR-030-16

Summary

Crowder and Saskatoon Society for the Protection of Children
Saskatchewan LRB File No. 023-16 - July 28, 2016
Decertification
|
Application for Rescission
Style
Hannah Crowder, Applicant, and Seiu-West, Respondent, and The Saskatoon Society for the Protection of Children Inc., Respondent Employer
File
Saskatchewan LRB File No. 023-16

Summary

Oliveira and JC Contracting
Ontario Labour Relations Board Case No: 0337-16-R & 0373-16-R - June 16, 2016
Decertification
|
Application for Termination
Style
Victor Oliveira and other employees of 1775604 Ontario Inc., Applicant v Labourers' International Union of North America, Local 183, Responding Party v 1775604 Ontario Inc. c.o.b. as JC Contracting, Intervenor
File
Ontario Labour Relations Board Case No: 0337-16-R & 0373-16-R

Summary

SCT Rail
New Brunswick L&EB No: IR-023-14 - July 24, 2015
Certification
|
Application for Certification
Style
Labourers’ International Union of North America, Local 900 Applicant, and SCT Rail Contractors Ltd., Respondent
File
New Brunswick L&EB No: IR-023-14

Summary

Watson and B.W.S. Manufacturing Ltd.
New Brunswick L&EB Nos. IR-041-13, IR-003-14 - May 19, 2015
Decertification
|
Unfair Labour Practice
Style
IR-041-13 United Steelworkers, Local 1-306 Complainant, - and - B.W.S. Manufacturing Ltd. Respondent. - and - IR-003-14 Duane Watson Complainant, - and - B.W.S. Manufacturing Ltd. Respondent.
File
New Brunswick L&EB Nos. IR-041-13, IR-003-14

Summary

JCH Contracting
Ontario Labour Relations Board Case No: 0320-15-R - May 15, 2015
Certification
|
Application for Certification
Style
Labourers' International Union of North America, Ontario Provincial District Council, Applicant v J.C.H. Contracting Ltd., Responding Party
File
Ontario Labour Relations Board Case No: 0320-15-R

Summary

Ross, King and Selkirk Ent. (John Gillis Lodge)
Prince Edward Island Labour Relations Board Nos. 14-003, 14-006, 14-008 - March 1, 2015
Decertification
|
Application for Revocation and Unfair Labour Practice
Style
Garry Ross And Cindy King, Employees Of Selkirk Enterprises Dba Dr. John M. Gillis Memorial Lodge Applicant And: PEI Union Of Public Sector Employees Respondent – And – In The Matter Of An Unfair Labour Practice Complaint (14-006) Between: PEI Union Of Public Sector Employees Applicant And: Garry Ross And Cindy King, Employees Of Selkirk Enterprises Dba Dr. John M. Gillis Memorial Lodge Respondent – And – In The Matter Of An Unfair Labour Practice Complaint (14-008) Between: PEI Union Of Public Sector Employees Applicant And: Selkirk Enterprises Dba Dr. John M. Gillis Memorial Lodge Respondent
File
Prince Edward Island Labour Relations Board Nos. 14-003, 14-006, 14-008

Summary

Pickard Construction
Ontario Labour Relations Board Case No: 3402-14-R; 3291-14-R; 0192-15-R - February 27, 2015
Certification
|
Application for Certification, Membership Evidence
Style
International Union of Operating Engineers, Local 793, Applicant v. 955140 Ontario Inc. o/a Pickard Construction, Responding Party
File
Ontario Labour Relations Board Case No: 3402-14-R; 3291-14-R; 0192-15-R

Summary

Richmond Olympic Oval
British Columbia LRB No: B190/2014 - October 28, 2014
Certification
|
Application for Partial Certification
Style
Richmond Olympic Oval Corporation v International Union of Operating Engineers, Local no 882
File
British Columbia LRB No: B190/2014

Summary

Rambler Metals
Newfoundland & Labrador LRB File Nos. 5473 - October 27, 2014
Certification
|
Unfair Labour Practice
Style
Citation: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7144 Applicant and Rambler Metals and Mining Canada Limited First Respondent and Lloyd Mitchell Second Respondent
File
Newfoundland & Labrador LRB File Nos. 5473

Summary

Acadian
New Brunswick L&EB: IR-032-13 - July 17, 2014
Decertification
|
Application for Termination of Bargaining Rights
Style
Citation: United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Acadian Construction (1991) Ltd. and Peter Sinclair
File
New Brunswick L&EB: IR-032-13

Summary

O'Leary and C.A.S. Construction
Ontario Labour Relations Board Case No: 0295-13-R; 0437-13-R - November 14, 2013
Decertification
|
Application for Termination
Style
Frank O’Leary, Applicant v. Carpenters’ District Council of Ontario United Brotherhood of Carpenters and Joiners of America Drywall Acoustic Lathing and Insulation Local 675, Responding Party v. C.A.S. Interiors Inc., Intervenor
File
Ontario Labour Relations Board Case No: 0295-13-R; 0437-13-R

Summary

Flor and Ronco Roofing
Ontario Labour Relations Board Case No: 0239-13-R - September 30, 2013
Decertification
|
Application for Termination
Style
Jonathan Flor, Applicant v. Sheet Metal Workers' & Roofers' Local 30, Responding Party v. 2068553 Ontario Inc. c.o.b. as Ronco Roofing & Sheet Metal, Intervenor.
File
Ontario Labour Relations Board Case No: 0239-13-R

Summary

Comox District Consumer's Co-op
British Columbia LRB No: B159/2013 - August 16, 2013
Decertification
|
Decertification - Communication
Style
Comox District Consumer's Co-Operative (The ""Employer"") -And- United Food And Commercial Workers International Union, Local 1518
File
British Columbia LRB No: B159/2013

Summary

WRH Construction
Newfoundland & Labrador LRB No: 5295 - August 27, 2012
Certification
|
Application for Certification
Style
Construction General Labourers Rock and Tunnel Workers, Local 1208 Applicant and W.R.H. Construction Inc., carrying on business under the name and style of Hydro-Guard Roofing Systems (Hydro-Guard) Respondent
File
Newfoundland & Labrador LRB No: 5295

Summary

Ming Pao
Ontario Labour Relations Board Case Nos: 1831-10-U; 2071-10-U; 0695-11-U - January 30, 2012
Certification
|
Application for Certification and Unfair Labour Practices
Style
Communications, Energy and Paperworkers Union of Canada, Local 87-M Southern Ontario Newsmedia Guild, Applicant v. Ming Pao Newspapers (Canada) Ltd., Responding Party
File
Ontario Labour Relations Board Case Nos: 1831-10-U; 2071-10-U; 0695-11-U

Summary

Maritime Demolition
Nova Scotia Labour Board Case No: LB-0227; LB-0311 - January 20, 2012
Decertification
|
Application for Certification and Unfair Labour Practices
Style
Thomas Grinter on behalf of Certain Employees of Maritime Demolition Limited Applicants and Labourers International Union of North America, Local 615 and Respondent Maritime Demolition Limited, Employer
File
Nova Scotia Labour Board Case No: LB-0227; LB-0311

Summary

FedEx Ground Package System and Teamsters
CIRB Board File: 27851-C - November 22, 2011
Certification
|
Unfair Labour Practice
Style
Canada Council of Teamsters, complainant, and FedEx Ground Package System, Ltd., respondent.
File
Canada Industrial Relations Board File: 27851-C

Summary

Button and Walmart
Saskatchewan LRB File Nos. 096-04, 038-05, 001-09, 177-10, 184-10 & 224-10 - June 23, 2011
Decertification
|
Unfair Labour Practice – Communication, Jurisdiction, Intimidation, Union Security
Style
Gordon Button, Applicant V. United Food And Commercial Workers, Local 1400 And Wal-Mart Canada Corp., Respondents
File
Saskatchewan LRB File Nos. 096-04, 038-05, 001-09, 177-10, 184-10 & 224-10

Summary

Moretti
Ontario Labour Relations Board - 0019-10-R - June 13, 2011
Decertification
|
Union complaints dismissed; LabourWatch name referred to.
John Moretti, Applicant v. Universal Workers Union, Labourers' International Union of North America Local 183, Responding Party v. Moretti Carpentry Construction, Intervenor.

Summary

John Moretti, the sole employee on the day of the Application, was the younger brother of the owner of Moretti Construction Company. On two occasions in 2010, before he applied and again before his hearing, he called our 800 number. His call was returned by an expert LabourWatch volunteer the same day. His April 2010 Application to decertify LIUNA Local 183 was challenged by the union on a number of grounds including his use of LabourWatch. He testified about his use of the site and his calls to us. He faced a battery of union lawyers in July of 2010.

Telford and Rexdale
Ontario Labour Relations Board Case No: 3502-10-R - February 1, 2011
Decertification
|
Application for Termination
Style
Jeremy Telford, Applicant v. Service Employees International Union Local 2 on Brewery, General And Professional Workers Union, Responding Party v. Rexdale Mobile Truck Wash (1981) Inc., Employer
File
Ontario Labour Relations Board Case No: 3502-10-R

Summary

Alberta Attorney General
Alberta LRB Docket: 0903 19396
Charter
|
Attorney General of Alberta asked for review of a decision
Style
Citation: Alberta (Attorney General) v. United Food and Commercial Workers Union, Local No. 401, 2010 ABQB 455
File
Alberta LRB Docket: 0903 19396

Summary

Kyiv Metals
Ontario Labour Relations Board Case No: 0301-10-R - May 13, 2010
General
|
Request for Reconsideration
Style
Tariel Gambarashvili, Applicant v. Sheet Metal Workers’ International Association Local Union No. 30, Responding Party v. 1440842 Ontario Inc. o/a Kyiv Architectural Metals, Intervenor
File
Ontario Labour Relations Board Case No: 0301-10-R

Summary

Hutchinson
Saskatchewan LRB File No. 006-09 - February 24, 2009
Decertification
|
Union Complaints Dismissed
Style
Tammie Hutchinson v. United Food and Commercial Workers Union
File
Saskatchewan LRB File 006-09

Summary

Decertification - Interference - Union alleges Employer interference and influence in bringing application, but provides no concrete evidence of same - Board allows application and orders vote pursuant to s. 6 of The Trade Union Act.

Premium Brands
Alberta [2009] L.R.B.R. LD-004 - January 21, 2009
Free Speech
|
Unfair Labour Practice - Employer
Style
UFCW v. Premium Brands Operating GP Inc.
File
Letter Decision [2009] Alta.L.R.B.R. LD-004
Cite
[2009]Alta.L.R.B.R. LD-004

Summary

In late 2008 employees of Premium Brands in Calgary, Alberta applied to decertify the UFCW. The union filed Unfair Labour Practices charges.

The employer’s memo contained information about LabourWatch. The union did not expressly complain about the LabourWatch content. The decision allowed the vote to be counted but said nothing about LabourWatch. It merely reproduced the employer’s memo including the LabourWatch section. The vote was in favour of decertification.

Background

Premium operated a fresh meat and warehouse distribution facility in Calgary, Alberta with approximately 48 employees - 25 in the United Food and Commercial Workers bargaining unit. Premium also operated a similar facility in Edmonton that was union-free.

The Calgary employees filed for decertification in November of 2008.. The Board held the vote on December 9, 2008 and sealed the ballot box pending the determination of the union’s complaint.

The union’s complaint related to the posting of four documents in the workplace on the days prior to the vote. One of the postings was a memo from the employer. This memo referred to other documents such as the benefits under the Collective Agreement, benefits for non-union employees at the Edmonton facility and the Edmonton Employee Handbook, all of which were posted along with the employer’s memo. At the bottom of the memo from the employer was contact information for the Labour Board and for LabourWatch.

Though a number of the union’s concerns were found to be valid, no reference was made to the employer’s referral to LabourWatch and the Board ultimately, in January 2009, ordered the ballot box opened and the votes counted.

Conclusion

Of interest, while the Board had concern with some aspects of the employer’s communications, it did rule that the employer’s comparison of the collective agreement to the non-unionized employees was accurate and was not unlawful.

LabourWatch was not directly named in the decision save that the Board chose to include the entire employer memo.

Walmart - Weyburn, Saskatchewan
Saskatchewan LRB No: 069-04 - December 4, 2008
Certification
|
Application for Certification
Style
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400 Applicant, v. WALMART CANADA CORP. at Weyburn, Saskatchewan, operating as WAL-MART, WAL-MART CANADA, SAM’S CLUB and SAM’S CLUB CANADA, Respondent
File
Saskatchewan LRB No: 069-04

Summary

Michael Nolin
British Columbia LRB No. B123/2006 - May 30, 2006
Free Speech
|
Unfair Labour Practice for Third Party Speech
Style
Michael Nolin v. Wal-Mart, UFCW, Certain Employees et al.
File
British Columbia LRB No. B123/2006
Cite
52968 and 53378

Summary

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.

Varsity Common Garden Market
Saskatchewan LRB No. 181-04 & 227-04 - April 6, 2006
Decertification
|
Union Complaints Dismissed

Summary

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.

Labrador Motors
Newfoundland & Labrador LRB No. 4766 - January 12, 2004
Certification
|
Union Complaints Dismissed

Summary

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.

Bonté Foods
New Brunswick L&EB No. IR-036-03 - July 22, 2003
Certification
|
Employee Card Cancellations Rejected

Summary

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.

Apex Services
New Brunswick L&EB No. IR-035-03 - June 2, 2003
Certification
|
Employee Card Cancellations Allowed

Summary

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.

Walmart - BC
British Columbia LRB No. B156/2003 - May 8, 2003
Certification
|
Union Complaints Not Upheld

Summary

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.

The Brick
British Columbia LRB No. B309/2002 - September 17, 2002
Certification
|
Union Complaints Not Upheld

Summary

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.

Canadian Legislation

In this section we keep decisions and legislation by Canadian Courts that, in our view, represent examples of LabourWatch's Guiding Principles.

Union Financial Disclosure Provisions in Various Canadian Statutes
Legislation
|
Compendium of Financial Disclosure Provisions in Various Canadian Statutes

Summary

Click here to view the entire document.

This document contains excerpts from Canadian labour legislation that deal with financial disclosure requirements.

C-377 - Private Members Bill (PMB)
First Reading December, 2011
Legislation
|
An Act to amend the Income Tax Act (labour organizations)
Style
C-377 - Private Members Bill (PMB)
File
An Act to amend the Income Tax Act (labour organizations)

Summary

This enactment amends the Income Tax Act to require that labour organizations provide financial information to the Minister for public disclosure.

Forced Membership and Dues Legislation - Public Sector
Legislation
|
Public Sector - Compendium of Canadian Forced Membership and Dues Provisions

Summary

Click here to view the entire document.

This document contains excerpts from Canadian public sector labour legislation that deals with forced union membership and forced union dues.

Forced Membership and Dues Legislation and Decisions - Private Sector
Legislation
|
Private Sector - Compendium of Canadian Forced Membership and Dues Provisions

Summary

Click here to view the entire document.

This document contains excerpts from Canadian private sector labour legislation that deals with forced union membership and forced union dues.

Canadian Charter of Rights and Freedoms
Legislation

Summary

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 official version Canadian Charter of Rights and Freedoms on the Justice Department's website.

Quebec Charter of Human Rights and Freedoms
Legislation

Summary

As this document is continuously updated we have linked to the Commission des droits de la personne et des droits de la jeunesse Quebec website. We do not provide a PDF version of this document.

Click here to link to the official version.

Canadian Bill of Rights
Legislation

Summary

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 "Rand Formula"
Ford Motor Company of Canada Limited and The International Union United Automobile, Aircraft and Agricultural Implement Workers of America (U.A.W.C.I.O.). - January 29, 1946
Union Dues
|
Arbitration-Award on issue of union security.

Summary

The architect of compulsory union dues in Canada was then Supreme Court Mr. Justice Ivan C. Rand who was an Appointed as arbitrator to settle a strike. The dispute was between the Ford Motor Co. in Windsor, Ontario and the United Auto Workers Union. He handed down an Arbitration Award on January 29, 1946, that made union dues compulsory for both Members and non-Members of the union at this Ford location.

Canadian Decisions
FedEx Ground Package System and Teamsters
CIRB Board File: 27851-C - November 22, 2011
Certification
|
Unfair Labour Practice
Style
Canada Council of Teamsters, complainant, and FedEx Ground Package System, Ltd., respondent.
File
Canada Industrial Relations Board File: 27851-C

Summary

Ontario (AG) v Fraser
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 - April 29, 2011
Charter
Armstrong - Queen's Bench of Alberta
Alberta Court of Queens Bench of Alberta - August 6, 2009
Fines
|
Queen's Bench of Alberta overturns ALRB decision that fined a union Member who worked non-Union job
Style
Armstrong v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146, 2009 ABQB 477
Case
Court of Queen's Bench of Alberta
Docket
0801 03140

Summary

On August 6, 2009 the Alberta Court of Queen’s Bench dealt an important blow to the all too common practice of unions imposing significant fines upon members who work for employers not having a relationship with the union.

This case involved an experienced welder who was a member of the Boilermakers Union. He had been working in a managerial position for a building trades contractor and then had an opportunity to work for a non-union construction management company, also in a managerial position. When the Union learned of this employment, it implemented its disciplinary procedures and fined the member $5,000. This is common in the construction industry. The Labour Relations Board upheld this Union discipline.

The Court overturned the Labour Board’s decisions and thus the Union’s discipline. Two of the Court’s important findings were as follows:

1. The Union violated its member’s “right to counsel” that exists under the Labour Relations Code for union discipline proceedings. Both the Union Constitution and its communications with the member indicated that he could only be represented by a fellow union member, not a lawyer of his choosing. The member did not participate in the discipline proceedings because he viewed it as being a “kangaroo court”. Although the Union subsequently gave evidence that it would have allowed legal representation in its hearings, the Court found this did not satisfy the member’s right to counsel because the member did not know of this fact.

2. Although the Labour Relations Code allows unions to punish members in certain circumstances, they are not entitled to do so when a member is working for a non-union company in a managerial position. A union may only punish members in such circumstances where it can provide “reasonable alternate employment.” A position under a collective agreement is not reasonable alternate employment to a managerial position. Further, the Court found that the purpose of this provision is to allow limited union discipline only for employees working under a collective agreement, not managerial employees.

Although this decision is consistent with similar decisions made in other provinces, it is an important precedent in Alberta in limiting the harsh practices of some unions. It is unknown whether the Union will appeal this decision.

Election Act Ruling
Supreme Court of British Columbia
General
|
Election ads not in bargaining scope
Style
British Columbia Teachers' Federation v. British Columbia (Attorney General), 2009 BCSC 436
Case
Supreme Court of British Columbia
Docket
S085226

In this summary LabourWatch has only dealt with the narrow aspect of how this ruling affects the use of unionized worker’s dues in British Columbia. We have not addressed the greater issue surrounding the Election Act ruling and how it affects the spending limits during an election campaign.

Summary

Justice Cole held that the Election Act’s restrictions on the Charter were in breach of the Charter of Rights and Freedom.

However, the basis for his decision was quite limited. He rejected completely the claim of the Applicant Unions that unions and union members had greater constitutional rights to engage in election advertising under the Charter because of the constitutional protection of collective bargaining. He upheld an argument that election advertising does not come within the scope of collective bargaining as protected under the Charter.

The Applicant Unions argued in this case that collective bargaining should be viewed broadly for constitutional purposes, to include the use of union dues for purposes outside of the negotiation and administration of collective agreements. If this argument had been accepted, it would have blocked union member’s rights to challenge the use of their dues for political or social causes which they did not endorse or approve of. Nor could a legislature enact measures to protect union members from contributing monies to, and being associated with, political and social causes against their will. The constitutional protection of collective bargaining would have trumped the rights and interests of dissenting union members. Now, with this decision, it is open to union members such as Laurence and Weis to challenge constitutionally the ability of their unions to spend their union dues for purposes other than the negotiation and administration of collective agreements, and for the legislature to enact such a restriction.

In responding to the Union’s claim, counsel for Laurence and Weis not only challenged the assertion that the constitutional protection of collective bargaining should be expanded to include election advertising, but also argued that the restriction on election advertising in the Act were helpful in protecting their interests. The more the union could spend on election advertising, the more they were being forced to contribute to, and be associated with, political parties and causes with which they did not agree.

Significantly, Justice Cole did not rule that Laurence and Weis, and by extension other likeminded union members, had no constitutional rights worthy of protection, as the Unions argued. Rather, he accepted that their constitutional rights were detrimentally affected but held that in the context of this case, their rights did not outweigh the harmful effect of the legislation on all citizens.

Justice Cole was concerned about the proximity of the sitting of the legislature with the election date. The restrictions on election advertising during the 88 day period prior to the election meant that citizens were restricted in advertising for or against issues or proposed legislation being discussed in the legislature. Justice Cole thought this went too far. That is the limited basis of the decision.

In summary, the Court absolutely rejected the claim that Unions had a special constitutional right to engage in election advertising, and it accepted that the constitutional rights of dissenting union members are harmed by such advertising. This sets the stage for either a separate constitutional action brought by dissenting union members, or, preferably, legislative protection for their constitutional rights. If the government decides to enact legislation to confine the use of mandatory union dues to expenses directly related to collective bargaining, the decision could be used to support the proposed legislation in the Legislature and to defend against the inevitable constitutional challenge.

BCTF v CPSEA
British Columbia Court of Appeal - February 4, 2009
General
|
Right to protest
Between British Columbia Teachers federation and British Columbia Public School Employers' Association

Summary

Appeals by the unions from a decision of a chambers judge dismissing their applications for judicial review of decisions of the Labour Relations Board holding that the staged work stoppages of the appellants were strikes that contravened the Labour Relations Code prohibition against mid-contract strikes. The appellants staged short work stoppages to protest legislation interfering with their conditions of employment and overriding collective bargaining processes. The appellants argued that the definition of strike in the Labour Relations Code breached their right to freedom of expression, in that it restricted their ability to engage in political protests. The chambers judge accepted that the protest strikes involved expressive activity but, contrary to the Board consensus, she concluded that it did not engage s. 2(b) protection. In the alternative, she concluded that any infringement was justified under s. 1 and dismissed the petitions for judicial review.

HELD: Appeals dismissed. The effect of the mid-contract strike prohibition was a restriction on an effective means of expressive action and thus trenched on the s. 2(b) guarantee of free expression. The infringement was justified under s. 1. There was no infringement of s. 2(c) or s. 2(d). The object of the prohibition was the prevention of disruption of services or production. That objective was pressing and substantial. The mid-contract prohibition was rationally connected to that objective. The prohibition extended a limit that was non-controversial in a collective bargaining context to a political protest context. Means of free expression other than through work stoppages remained unimpaired. The prohibition of mid-contract strikes was balanced by the requirement that every collective agreement must contain an arbitration provision to resolve mid-contract disputes. A prohibition of all mid-contract strikes was intended to curtail the disruption caused to services or production caused by such strikes and therefore was rationally connected to the law's objective. The complete prohibition of mid-contract strikes could meet the tests of minimal impairment and proportionality. The effects-based definition of strike satisfied the requirements of minimal impairment. The mid-contract strike prohibition was limited to those activities and proportionate to the disruption of services or production resulting from the prohibited strike activity.

Birch & Luberti
Ontario Court of Appeal - December 3, 2008
Fines
|
Unions cannot use courts to collect fines
Style
Jeffery Birch and April Luberti and Union of Taxation Employees Local 70030
Case
Court of Appeal for Ontario
Docket
C48007

Summary

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.

The decision was immediately appealed by the union in the Ontario Court of Appeal.

The union lost in a 2 to 1 decision on December 3, 2008.

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 October 2007 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.

The December 2008 Appeal Decision

In a 2 to 1 decision, the majority of the Court of Appeal agreed with the application judge and held that the provision in UTE's constitution authorizing the imposition of fines is unconscionable and therefore unenforceable. In applying the unconscionability test, the majority found that there was an inequality in bargaining power between the parties and that, you as the respondents did not have much choice in agreeing to the inclusion of such penalty provisions in their collective bargaining agreement. Moreover, the majority found that the penalties imposed were excessive. While the court recognized that union solidarity is a fundamental principle of the union movement and the collective bargaining process, the court found that the means adopted to achieve such solidarity were "very unfair". As such, the majority of the court found no basis to interfere with the decision of the application judge. As agreed by the parties at the conclusion of the oral arguments, the court awarded costs in the amount of $3,000 in our favour.

In a dissenting decision, Juriansz J.A. found that the fine was not unconscionable and that the common law rules that penalties are per se unenforceable does not apply to the disciplinary provisions of a union constitution. Justice Juriansz found that (i) there was no inequality of bargaining power; (ii) the amount of the fine was not unfair when considered in light of the actual damage suffered by the union; and (iii) the disciplinary provision is not inherently unenforceable as a penalty. As such, Justice Juriansz would allow the appeal.

Macmillan, Pinchak and Gejdos - Response to an Appeal
Court of Queen's Bench of Alberta - October 23, 2008
Fines
|
Unions cannot use courts to collect fines

Summary

In response to an appeal to the Alberta Provincial Court decision of February 2008 the Telecommunication Workers Union (TWU) appealed to the Court of Queen's Bench of Alberta.

The Queen's Bench again ruled in agreement with other Canadian jurisdictions that Unions cannot enforce disciplinary penalties in a court of law.

Armstrong
Alberta Labour Relations Board - February 22, 2008
Fines
|
Labour Board upholds fine and Membership suspension of union Member who worked non-Union job

Summary

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."

Macmillan, Pinchak and Gejdos
Provincial Court of Alberta - February 1, 2008
Fines
|
Unions cannot use courts to collect fines

Summary

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

Birch & Luberti - 2007 Decision
Ontario Superior Court of Justice - October 17, 2007
Fines
|
Unions cannot use courts to collect fines
Style
Jeffery Birch and April Luberti and Union of Taxation Employees Local 70030
Case
Ontario Superior Court of Justice
Docket
06-CV-35925
Hubner
British Columbia Labour Relations Board - BCLRB No. B231/2007 - October 5, 2007
Membership
|
Hubner et al. v. United Food and Commercial Workers, Local 247
Certain Employees -and- United Food and Commercial Workers Union, Local 247

Summary

In 2007, members of the United Food and Commercial Workers Union, Local 247, requested that their union produce copies of its financial statements for the years 2001 to 2006. The employees had become concerned about the manner in which the UFCW was handling its finances. When the UFCW declined, the bargaining unit members applied to the BC Labour Relations Board for an order compelling the Union to do so

Summary of Canadian Decisions
Union Dues
|
A Brief Outline of Supreme Court of Canada Precedent

Summary

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.

BC Health Services
Supreme Court of Canada - 2007 SCC 27 - June 8, 2007
Charter
|
Limited Right to Process of Collective Bargaining
Style
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia
Case
Supreme Court of Canada 2007 SCC 27
Docket
30554

Summary

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.

Walmart - Appeal of 2004 Judgement
Saskatchewan Court of Queens Bench 2004 SKQB 324 - July 23, 2004
General

Summary

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.

Berry v. Pulley
Supreme Court of Canada - [2002] 2 S.C.R. 493, 2002 SCC 40 - April 25, 2002
Fines
|
Union members have no "bargaining power" with a union

Summary

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.

Drake
Newfoundland and Labrador Supreme Court - [2002] N.J. No. 25 Docket: 1996 G.B. No. 91 - January 21, 2002
Fines
|
Union's cannot use courts to collect fines

Summary

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.

Advance Cutting & Coring
Supreme Court of Canada - [2001] 3 S.C.R. 209 - October 19, 2001
Charter
|
Allowed Violation of Freedom to Not Associate
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
Dates
2000: March 20 / 2001: October 19

Summary

This case deals with legislation in the Canadian province of Quebec that effectively forces construction workers to become and remain Members in good standing of one of five prescribed 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. The history the court summarized was that of union violence.

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 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), employers and 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 Quebecer.

Prior to 1968 the Quebec construction industry was covered for the most part by 15 separately negotiated labour agreements for various regions. In 1968, in response to this violence and corruption the province abandoned its existing system and adopted Bill 290, a province-wide approach with a single agreement that covered 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. 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, vandalism and corruption that continued to plague the province’s construction sector. Some observers say that some changes were also included to make legal challenges to the law more difficult.

The Decision

In Advance 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 five 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 begun to acknowledge 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 Advance the Supreme Court of Canada clearly 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 violent and corrupt 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

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 were not willing to enforce the law. Instead, construction employees had 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 have ensured the rights of all employees, employers and the public 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 again in Quebec in 2013, that the Charbonneau Commission is exposing union corruption in the construction sector. Further, there are continuing rumours that 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.

Litke
Brotherhood of Maintenance of Way Employees v. Litke - [1998] M.J. No. 569 Docket: CI 98-01-08761 - December 18, 1998
Fines
|
Union's cannot use courts to collect fines

Summary

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.

Raeburn
Federal Court of Canada, Appeal Division - May 3, 1995
Decertification
|
Union Complaints Not Upheld

Summary

Employees opposed the unionization of their workplace and called for a vote in letters, which was evidenced in letters sent to Canada Labour Relations Board. In a prior decision, Board had ordered that a vote be taken. The vote was decided against the union and led to a dismissal of the certifi-cation application by a panel of Board. Board had before it the letters of employees. The union sought a reconsideration and notice was given to the employer, but not to employees. A full Board later unanimously reversed the decision of the earlier panel. Employees applied for judicial review. Held, the application was allowed. The decision of Board was set aside. A notice to persons concerned or who might be affected by the application was necessary and was in accordance with the principles of natural justice.

Alcorn Detwiller
Saskatchewan Labour Relations Board - 1995 LRB File No. 247-94 - April 28, 1995
Fines
|
Union constitution did not meet code requirement to allow fines

Summary

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.

Lavigne
Supreme Court of Canada - [1991] 2 S.C.R. 211 - June 27, 1991
Charter
|
Allowed Union Dues for Political & Other Purposes
Style
Lavigne v. Ontario Public Service Employees Union
Case
Supreme Court of Canada [1991] 2 S.C.R. 211
Docket
21378
Dates
1990: June 18, 19; 1991: June 27

Summary

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.

I.A.M. v. Hearn
Supreme Court of Newfoundland - [1986] N.J. No. 261 Action 1984 Nos. 1351, 1352 and 1353 (D.C.) - December 10, 1986
Fines
|
Union's cannot use courts to collect fines

Summary

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 respondents were found guilty of the offences charged and it imposed upon each of them a fine of $1,000.00. Although there was provision in the constitution allowing the respondents to appeal the decision of the appellant, they did not avail of it and the time limit provided for such appeal has now passed. The respondents have not paid the fines imposed upon them. By originating summons with statements of claim attached, issued out of the Provincial Court of Newfoundland on December 31st, 1983 the appellant sought to recover from the respondents the amount of the respective fines levied on them as debts. When the action came on for hearing in the Provincial Court of Newfoundland on the 25th day of May, A.D., 1984 His Honour Judge M.R. Reid, upon the application of the respondents struck out the claim of the appellant upon the ground that he lacked the jurisdiction to try the case.

Radio Shack
Ontario L.R.B. - December 5, 1979
General
|
Unfair Labour Practice - Employer
Style
U.S.W.A. v. Radio Shack
File
Ontario LRB Docket: Doc. 1004-79-U

Summary

Collective Agreement -- Damages -- Duty to Bargain in Good Faith -- Interference in the Trade Union -- Company violating several provisions of Act -- Offering voluntary revocable check-off of dues -- Whether maintaining minimum statutory position on union security bargaining in bad faith -- Broad remedial order issuing -- Damages awarded to Union and Employees.

Burke v Canada
Federal Court of Canada - Trial Division Ottawa, Ontario - February 16. 1976
General
|
Union dues levied for and Old Age Benefit and a Mortuary Benefit are not tax deductable
Between Herbert Burke, plaintiff and Her Majesty the Queen, defendant

Summary

This is a reference for determination under subsection 17(3) of the Federal Court Act, of a question arising under the Income Tax Act which the parties, pursuant to subsection 173(1) of that Act and subsection 17(3) of the Federal Court Act, have agreed in writing should be determined by the Court. The question, as settled by a supplementary agreement in writing filed since the hearing, is that of the extent, if any, to which certain amounts, totalling $383.87, paid by the plaintiff during the year 1973 as dues to a trade union, of which he was, at all material times, a member, are deductible in computing his income for that year.

European Decisions and Legislation

In this section we keep decisions and legislation from countries of the European Union that we feel represent examples of LabourWatch's Guiding Principles.

Summary of European Decisions
Summary of Case Law
|
A Brief Outline of European Court of Human Rights Precedent

Summary

This is a summary of European Court of Human Rights precedent concerning forced union membership and use of union dues for political purposes. Click here to read.

Evaldsson
European Court of Human Rights - App #75252/01 - February 13, 2007
Union Dues
|
Forced Non-Member Dues For Bargaining Purposes Only
Style
Evaldsson and Others v. Sweden
Case
European Court of Human Rights
Appl.
#75252/0

Summary

This case against the Kingdom of Sweden in the European Court of Human Rights alleged that a union’s monitoring fees (union dues) paid by the applicant unionized construction industry employees, who had not also become Members of the union, violated several Articles of the European Convention on Human Rights.

The Court unanimously held that there had been a violation of their right to Peaceful Enjoyment of Possessions (or protection of property rights) under the European Convention on Human Rights (the Convention) - specifically Protocol 1, Article 1.

Having found a violation, the Court declined to rule on whether other articles, particularly the freedoms of association and expression, were violated or not.

Each applicant was awarded 5,000 euros (EUR) for non-pecuniary damages and EUR 87,800, jointly, for costs and expenses which had to be paid by the Kingdom of Sweden, not the union, because Sweden had not protected the employees from the union’s actions by ensuring that Swedish legislation was compliant with the Convention.

The implications of this ruling are that unionized employees, who do not also join a union, cannot have dues levied for general union activities. Dues or fees for a service provided, even if the employee does not wish to have the service carried out (such as “salary inspection”), would still be legal as long as the service fees do not generate a surplus and it must now be possible for employees to determine that there is no surplus.

The applicants did not attempt to contest the union dues on non-Members. Most, if not all unionized employees in the EU who do not become Members of the union in their workplace do not pay dues at all. They are still covered by a collective agreement and are unable to bargain their labour as they wish or, as unions would say – they still benefit from the collective agreement.

The union, which operated under a sectoral collective agreement covering employers represented by an employer’s organization in subsequent bargaining in 2007 did not attempt to alter the scheme and is no longer collecting any dues at all from the non-Members, let alone dues for political and other purposes.

Background

Eight unionized employees in the construction company LK Mässinteriör AB carried out work covered by a sectoral “labour agreement” (collective agreement for a group of employers) signed by the union and the Swedish Construction Industries (Sveriges Byggindustrier) – an employer association. Three of them were also Members of the Swedish Building Workers’ Union (Svenska Byggnadsarbetareförbunde) while the five unionized applicants were not Members of this or any other union. They were employed from March 3 to July 30, 1999.

Under the collective agreement, the local union had the right to monitor employee pay (“salary inspection”) and to be reimbursed for the costs involved on the basis of a fee - 1.5 per cent of the worker’s pay. The employer was obliged to deduct that amount from the worker’s pay and provide the local of the union with the information it needed for this monitoring work. Only unionized employees who were Members of another union were exempt from these deductions by this union.

The applicants asked to be exempt from the deductions. The employer complied and stopped paying the fees to the union and stopped providing the agreed information concerning the applicants. The union insisted on payment and initiated formal local negotiations, no solution was reached.

The employer association brought the case before the Labour Court (ArbetsdomstolenI) seeking a declaratory judgment that the employer was not required to levy the fees in question. On March 7, 2001, the Labour Court rejected the Industries claims.

The case was taken to the European Court of Human Rights in 2001 and heard in 2006.

The Judgment

The applicants maintained that they were forced to contribute to the financing of the general activities of a union against their will and in a manner comparable to a union Member, which was tantamount to forced Membership.

Their case against the Kingdom of Sweden in the European Court of Human Rights alleged that the levying of monitoring fees (union dues) on the individual applicants’ wages involved violations of several of the European Convention on Human Rights: Specifically, they pointed to:

Article 9 – The right to freedom of thought, conscience and religion
Article 10 – The right to freedom of expression
Article 11 – The right to freedom of association
Article 14 – The right to freedom from discrimination
Protocol 1, Article 1 - Entitlement to the peaceful enjoyment of ones possessions. (Protection of Property)

The employer argued that, because the amount of the fees “greatly” exceeded the cost of the monitoring pay, the balance was going into general union funds and was being used for purposes that the applicant employees did not support, which amounted to forced union Membership so breaching their human rights.

The union claimed that the monitoring fees were not Membership fees (which were charged separately to the actual Members) so did not amount to forced union Membership. Also, the union claimed that the Employer erred in its evaluation of the funds and stated that the monitoring fees operated at a loss, not a profit. They argued that the positive right to associate outweighed the negative right to not associate and that banning monitoring fees would induce Members to leave the union because non-Members would pay no monitoring fee and did not pay Membership fees.

The union made considerable submissions regarding where these funds were allocated within the union’s structure.

The government of Sweden as defendant, argued that the costs of monitoring served not only the legitimate aim of protecting the rights and freedoms of others, but also pursued the general interest of the community, namely to uphold the legitimacy of the Swedish approach in the area of industrial relations. They claimed that the interference of the Protocol 1, Article 1 right was proportional to the aim of the Swedish system of collective bargaining.

The Court ruled that no clear picture could be developed regarding the accounting of the funds from monitoring or inspection activities versus those from Membership fees. The issue of whether or not the dues collected for monitoring purposes resulted in a surplus or not. The applicants asserted that most of the funds were used to support the pension plan of the union, “union agitation” and political work.

Such “agitation” work by union Members would include, among other things being paid by the union to work for which ever political party the union supports. Work could include leafleting, office work, and similar activities. In Sweden it is called Union/Political Co-operation (facklig/politisk samverkan) – a term so established that it is included and explained in Swedish dictionaries.

In the decision extensive analysis was made of the applicant’s claims in regard to the allegation that the monitoring fees collected by the union were excessive and did not offer value for the service the union claimed to have provided – monitoring whether or not the employees were being paid in accordance with the collective agreement.

The Court found that while some value was provided to the applicants, neither the union’s annual reports nor their budgets could support the union’s claim that the monitoring program ran at a deficit.

The Court found that the applicants had not been given sufficient information for them to verify how the fees they paid were actually used, information to which they were all the more entitled given that those fees were paid against their will and to an organization with a political agenda they did not support.

In conclusion, the Court considers that the Union’s wage monitoring activities, as applied in the present case in the context of the Swedish system of collective bargaining, lacked the necessary transparency.

Moreover, given that the Swedish authorities’ organized its labour market by delegating the regulation and legislation of important labour issues to independent organizations through a system of collective agreements, the Court found that the State was under an obligation to protect the applicants’ interests by holding those organizations accountable for their activities.

It was found that the government of Sweden had breached the applicant’s property rights because the government had a positive obligation to protect employee interests. In short, the government of Sweden had failed to protect the property or possession rights of the applicants to their monies. by ensuring appropriate Swedish legislation. If it existed, employees would be able to seek relief in Swedish courts instead of, in some instances having to proceed first through the Swedish system on to the European system.

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.

This was established clearly in the 2006 Sørensen and Rasmussen judgment which built on two key prior European Court of Human Rights rulings - Sigurjónsson (1993) and Young (1982).

The implications of the Evaldsson judgment for European employees appear to be that unionized employees who do not also join a union cannot have dues taken which exceed the costs a union incurs to administer the collective agreement. Unions now cannot fund political and other activities that are not directly related to administering the collective agreement on behalf of the unionized employees (Members or not).

In 1991, the Supreme Court of Canada reached a different conclusion with its Lavigne ruling and as such, while most unionized Canadians are not yet protected from forced membership, any Canadian employees who are not forced to join a union generally pay the same dues as Members and as such their monies are used for political and other activities not related to the administration of their collective agreement.

Sørensen and Rasmussen
European Court of Human Rights - App 52562/99 - 52620/99 - January 11, 2006
Membership
|
Forced Membership, Forced Dues For Politics - Illegal
Style
Sørensen and Rasmussen v. Denmark
Case
European Court of Human Rights
Appl.
#52562/99 and 52620/99

Summary

This landmark judgment of the European Court of Human Rights in 2006 declared the closed shop collective agreement provisions illegal.

Such provisions force union Membership on employees as a condition both for being hired as well as maintaining Membership in order to be hired and to avoid being fired from their jobs.

These actions were brought by two unionized employees (Sørenson and Rasmussen) against the Danish government. Danish trade unions have taken note of the judgment and will no longer enforce the contested closed-shop clauses they have secured from employers in collective agreements. The government indicated at the time that it would bring the country’s laws in line with the ruling.

The applicants had accepted Membership in the union, (Specialarbejderforbundet i Danmark - SiD), in order to apply for work and be hired. In the Court’s view, the fact that they had joined based on it being a term and condition of employment did not significantly alter the element of compulsion inherent in having to join a union against their will. Had they refused they would not have been hired.

The Court stated that individuals applying for employment often find themselves in a vulnerable situation and are only too eager to comply with the terms and condition of employment offered.

This decision concluded that it is a violation of the freedom of association - Article 11 of the European Convention on Human Rights for a person to be compelled to become a Member of a specific trade union in order to be employed.

Background

In June 1996, Morten Sørensen, who was a student about to start university, began working as a holiday relief worker for the supermarket chain store FDB. He was dismissed three weeks later for refusing to join the General Workers' Union in Denmark (SiD) which subsequently merged into the United Federation of Danish Workers (Fagligt Fælles Forbund, 3F). Sørensen was aware at the time of his employment that Membership was a condition of employment in the company.

He brought proceedings in the High Court of Western Denmark (Vestre Landsret) against the employer, FDB on the grounds that the relevant Danish law (Foreningsfrihedsloven) did not comply with Article 11 of the European Convention. He was unsuccessful. On November 18, 1998 the High Court did not find it that there had been a violation of Article 11 - Freedom of Association. This judgment was upheld on appeal by the Supreme Court (Højesteret) on June 8, 1999.

In the related case, Ove Rasmussen was a gardener and a Member of SiD in the mid-1980s. However, as he did not agree with its political affiliations, he resigned from SiD and became a Member of the Christian Trade Union (Kristelig Fagforening, KF).

Subsequently, having been unemployed for a while, he was offered a job with his present employer on the condition that he became a Member of SiD, with whom the employer had entered a closed-shop collective agreement. Although he still disagreed with SiD’s political views, in May 1999 he became a Member and was re-hired.

The case of Mr Rasmussen is different, in that he reluctantly stayed in SiD against his will in order to be rehired. Also, his case did not go through the Danish system of justice as did Sørenson’s.

The outcome of the case had importance for the Danish model of labour market regulation. It was dealt with in the Court’s Grand Chamber, which deals only with important cases of principle. If Denmark lost the case, i.e. if the Danish law on freedom of association was declared in contravention of the European Convention on Human Rights, the government would consequently have to forbid closed-shop agreements by law. It was feared that such an official prohibition would make 'wage dumping' possible, which would give impetus to the position of the politicians and experts who want to protect minimum wages by law.

In the European Union (EU), member countries must follow EU Directives. However Conventions, such as the European Convention on Human Rights are not as binding as Directives. As such actions to test Convention rights must generally make their way through a country’s own legal system before a case can be taken to the Court in Strasbourg. This is why such cases are brought against a country’s government and not, for example, the union and/or employer. The issue is that a country has failed to ensure its citizens Convention rights are protected. Once a country brings the Convention into their own statute law, then applicants can proceed against a union or employer, unless their allegation is that the law is not aligned with the Convention.

The Judgment

The applicants, Sørensen and Rasmussen, complained of a violation of Article 11 of the Convention – freedom of association. The applications were lodged with the Court in October and September 1999 respectively. They were both declared admissible on 20 March 2003. On 25 November 2004, the Chamber of the Court passed jurisdiction of the applications to the Grand Chamber and the applications were joined in January 2005. The final judgment was issued January 11, 2006.

Though being dealt with as one case, the two applications are different. Mr Sørensen was informed of the necessity to join SiD in order to get and keep his job, in line with the relevant closed-shop agreement and in accordance with Danish law. He declined to join SiD, was dismissed, took the case to court and lost both at the High Court and at the Supreme Court. The case of Mr Rasmussen is different, in that he reluctantly stayed in SiD against his will in order to obtain his present job, and that his case has not been through the Danish system of justice.

The Danish liberal-conservative government was in a dilemma in this case. Politically it was against closed-shops and wanted to forbid them, but in legal terms it took the position that human rights had not been violated in the case in order to defend government legislation which is a relatively standard approach. The government also argued that closed-shop clauses can be ”necessary in a democratic society” to maintain collectively agreed rights. They also emphasized that both applicants in the case had had the possibility to find a job not covered by a closed-shop agreement noting that only 10 percent of the labour market were affected by closed shop collective agreements.

In the Court’s view, however, the fact that the applicants accepted Membership of SID as one of the terms of employment did not significantly alter the element of compulsion inherent in having to join a trade union against their will. Had they refused they would not have been recruited. The Court stated that individuals applying for employment often find themselves in a vulnerable situation and are only too eager to comply with the terms of employment offered.

Both of the applicant’s objected to Membership in SiD because they could not subscribe to the political views of that trade union. They argued that they did not support the union’s political views and that though they had the possibility of subscribing to a form of “non-political Membership” of SiD or of any other trade union they chose not to.

The courts stated however that:

[I]t is to be observed that such “non-political membership” does not entail any reduction in the payment of the Membership fee to the specific trade union. In any event, there is no guarantee that “non-political membership” will not give rise to some form of indirect support for the political parties to which the specific trade union contributes financially

In these circumstances the court concludes that both applicants were compelled to join SID and that this compulsion struck at the very substance of the freedom of association guaranteed by Article 11.

What remained to be determined was whether the Danish Government, in authorising the use of the closed-shop agreements at issue, failed to secure the applicants’ enjoyment of their negative right to freedom of association and thereby violated Article 11 of the Convention. The Court focused on whether a fair balance had been struck between the applicants’ interests and the need to ensure that trade unions are enabled to strive for the protection of their Members’ interest.

The decision found that the Danish Minister of Employment had presented a Bill to Parliament to amend the Danish Act on Protection against Dismissal due to Association Membership which aimed at ensuring, among other things, that in the future no agreements could be lawfully concluded which imposed a duty on an employer to employ exclusively or to give preference to persons who were members of an association or a specific association. The Bill did not pass Danish parliament and was withdrawn.

During its analysis the Court took a broad view of the effect of closed-shop agreements against the “developments in society and the labour market”.

It is to be observed that [Denmark’s] legislative attempts to eliminate entirely the use of closed-shop agreements in Denmark would appear to reflect the trend which has emerged in the Contracting Parties, namely that such agreements are not an essential means for securing the interests of trade unions and their Members and that due weight must be given to the right of individuals to join a union of their own choosing without fear of prejudice to their livelihood. In fact, only a very limited number of Contracting States including Denmark and Iceland continue to permit the conclusion of closed-shop agreements.

In speaking of the European Union’s legislation that Denmark was trying to align itself with the Court makes comment:

In view of the above it appears that there is little support in the Contracting States for the maintenance of closed-shop agreements and that the European instruments referred to above clearly indicate that their use in the labour market is not an indispensable tool for the effective enjoyment of trade-union freedoms.

In conclusion, taking all the circumstances of the case into account and balancing the competing interests at issue, the Court finds that the respondent State has failed to protect the applicants’ negative right to trade union freedom.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining, it is obvious that the legal systems, industrial relations systems, and traditions and values 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, and union supervision of ratification and strike votes, etc.

Canada’s Supreme Court in interpreting the Charter of Rights and Freedoms has decided that there is a negative right of non-Association. More narrowly it has held the closed shop of forced membership and conditional employment mandated by statute law to be a violation of Charter rights. However, in Advance Cutting and Coring, the Court found Quebec’s Construction sector regime of forced membership, was saved by Section 1 – See LabourWatch’s Summary for this decision which detail our concerns about this ruling.

The Canadian Charter deals only with the laws, actions, governments and situations where government has a significant influence over the direction of collective bargaining. Collective agreements between unions and private sector employers are not subject to the Charter and as such employees seeking to end forced Membership would need to look to the legislatures to pass statute law banning forced Membership and union dues for non-Members. Whether or not some human rights statutes in Canada could be an avenue for employee legal action is a topic for further examination.

Sørensen and Rasmussen reinforces how out of step Canada is with international trends on employee free choice because our Court has found a way to allow the violation of Canada’s unionized employees and as such the closed shop is still very mush a part of most unionized workplaces in Canada.

Sigurjónsson
European Court of Human Rights - App #24/1992/369/443 - June 24, 1993
Membership
|
Banned Pre-Entry Forced Membership (Non-Union)
Style
Sigurdur A. Sigurjónsson v. Iceland
Case
European Court of Human Rights
Appl.
24/1992/369/443

Summary

Sigurjónsson was a taxi driver in Reykjavik, Iceland. In October 1984, Sigurjónsson then applied for a licence (using a printed form) to Frami Automobile Association ("Frami"); the form affirmed the applicant would pay membership fees to Frami.

Sigurjónsson was granted a licence and paid membership fees until August 1985, when he stopped doing so. In June 1986, Sigurjónsson's licence was revoked.

The Supreme Court of Iceland rejected Sigurjónsson's claims stating that the applicable law (Article 73 of the Constitution of Iceland) was intended to guarantee only a right to "form associations", not a right to remain outside one.

However, in June 1993, the European Court of Human Rights found that the requirement of union membership violated Article 11 of the European Convention. In doing so, the Court confirmed that "freedom of association" provides both the right to form an association and the right to remain outside of one.

Sibson
European Court of Human Rights - App #14327/88 - 20 April 1993
Membership
|
Non-Association Requires Objection to Union
Style
Sibson v. United Kingdom
Case
European Court of Human Rights
Appl.
#14327/88

Summary

The Court did not find that the form of compulsion in this case struck at the substance of the right to not associate. A truck driver and union member resigned membership after a personal quarrel with a co-worker. Otherwise the applicant was not opposed to the union. The remaining members subsequently entered into a closed shop arrangement in order to force Sibson to rejoin or be terminated. The employer offered a comparable job at a nearby work site. Sibson did not accept and was fired. His termination was upheld.

Young, James, and Webster
European Court of Human Rights - App 7601/76; 7806/77 - August 13, 1981
Membership
|
Banned Post-Entry Forced Union Membership
Style
Young, James, and Webster v. The United Kingdom
Case
European Court of Human Rights
Appl.
#7601/76; 7806/77

Summary

The applicant employees Young, James and Webster were employed by British Rail. During the time of their employment British legislation changed to allow for the termination of unionized employees who were not Members of the union in any British workplace where the union and employer negotiated a “Closed Shop” collective agreement.

Employment with British Rail required that employees be unionized by one of either, National Union of Railwaymen ("NUR"), the Transport Salaried Staffs’ Association ("TSSA") or the Associated Society of Locomotive Engineers and Firemen ("ASLEF"). The applicants, for a variety of reasons did not wish to become Members of one of the unions. They subsequently failed to satisfy this condition, and the change in legislation gave the union the power to have them terminated from their jobs.

This 1981 decision by the European Court of Human Rights held that the United Kingdom had failed to protect the applicant’s Article 11 - Freedom of Association rights when it allowed British Rail to terminate the employment of Messieurs Young, James and Webster.

Section 11(1): Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

This decision represents the first of three decisions over a 25 year period up to 2006 that together render all forms of forced union Membership and conditional employment illegal throughout the European Union (EU), which included 27 countries as of September 2007. Even though it appears that some members of the EU, such as Iceland may still have laws abrogating the human rights of workers, it appears they will no longer withstand any challenge.

Background

During the late 1960’s and early 1970’s legislation in Great Britain addressed the issue of the right (or lack thereof) for a union to force an employer to terminate employees who are not Members of the union where the union and employer had a closed shop provision in their collective agreement.

Considerable history is presented in this decision that explains how this right to terminate and transgress the free choice of unionized employees came and went a number of times in Britain.

The three unionized applicants had all been employed by British Rail for a period of time during which legislation in Great Britain marked both the exclusion and inclusion of the right to terminate where a closed shop provision was in place in a collective agreement. When legislation changed and granted the union the power to demand an employer terminate non-Members, the three applicants were required to join one of the unions that had agreements with British Rail. These facts clearly impact the Court’s decision.

In the European Union (EU), member countries must follow EU Directives. However Conventions, such as the European Convention on Human Rights are not as binding as Directives. As such actions to test Convention rights must generally make their way through a country’s own legal system before a case can be taken to the Court in Strasbourg. This is why such cases are brought against a country’s government and not, for example, the union and/or employer. The issue is that a country has failed to ensure its citizens Convention rights are protected. Once a country brings the Convention into their own statute law, then applicants can proceed against a union or employer, unless their allegation is that the law is not aligned with the Convention.

The applicants for a variety of reasons did not wish to also become Members of one of the unions and so failed to satisfy this condition and were fired. They alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10, 11 and 13 of the European Convention of Human Rights (the Convention).

  • Article 9 The right to freedom of thought, conscience and religion.
  • Article 10 The right to freedom of expression.
  • Article 11 The right to freedom of association.
  • Article 13 The rights to remedy.

The Judgment

In this decision the Court addresses, but does not reach a firm conclusion regarding the issue raised by the Applicants that the Article 11 - Freedom of Association implies a “negative right” to not associate. The Court discusses the point that the negative right of non-association had deliberately been excluded from the final Convention but the Court goes on to quote from documents that went into the development of the Convention (referring to the “travaux preparatoires” - preliminary works).

On account of the difficulties raised by the ‘closed-shop system’ in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which ‘no one may be compelled to belong to an association’…

In addressing the difficulty of adjudicating an Article 11 application the Court states that though not expressly addressed in the Convention "…it does not follow that the negative aspect of a person’s freedom of association falls completely outside the ambit of Article 11.” The decision states that the Court will limit its examination to the effects of the closed shop system on the applicants.

Nevertheless, the Court concludes that the situation facing the applicants clearly ran counter to the concept of freedom of association in its negative sense.

...a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union.

In the Court’s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11.

The Government expressly stated that they had no wish to argue Section 11(2) – Freedom of Association:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The conclusions drawn are also interesting considering the minority standing of the three applicants within the large, predominately union supporting group that was the workforce of British Rail at the time.

Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court.

Ultimately, the Court finds the government guilty of breaching Article 11 of the Convention and restitution is ordered for the applicants.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining, it is obvious that the legal systems, industrial relations systems, and traditions and values 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, and union supervision of ratification and strike votes, etc.

Canada’s Supreme Court in interpreting the Charter of Rights and Freedoms has decided that there is a negative right of non-Association. More narrowly it has held the closed shop of forced Membership and conditional employment mandated by statute law to be a violation of Charter rights. However, in Advance Cutting and Coring, the Court found Quebec’s Construction sector regime of forced Membership, was saved by Section 1 – See LabourWatch’s Summary for this decision which detail our concerns about this ruling.

The Canadian Charter deals only with the laws, actions, governments and situations where government has a significant influence over the direction of collective bargaining. Collective agreements between unions and private sector employers are not subject to the Charter and as such employees seeking to end forced Membership would need to look to the legislatures to pass statute law banning forced Membership and union dues for non-Members. Whether or not some human rights statutes in Canada could be an avenue for employee legal action is a topic for further examination.

Young appears to be the beginning of the end of the closed shop in Europe. It takes 25 years, including some other decisions such as Sibson (1993), another UK case, Sig. . . (1993) from Iceland to end the closed shop in the EU. In 2006, it is Sørensen and Rasmussen that ends the Danish closed shops. While legislated attempts were made, they failed to pass Parliament.

This line of EU decisions reinforce how out of step Canada is with international trends on employee free choice because our Court has found a way to allow the violation of Canada’s unionized employees and as such the closed shop is still very mush a part of most unionized workplaces in Canada.

ECHR
January 20, 1966
Legislation
|
European Convention on Human Rights

Summary

Click here to read our online PDF version of the European Convention on Human 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 European Court on Human Rights online version

This is the official online version of the European Court on Human Rights and is available in thirty languages.

United Nations / International Labour Organization

In this section we keep legislation of the United Nations (UN), and the International Labour Organization (ILO) that, in our view, represent examples of LabourWatch's Guiding Principles.

Convention No. 87
July 9, 1948
Legislation
|
Freedom of Association and Protection of the Right to Organise Convention

Summary

Click here to read our online PDF version.

This is 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 International labour Organization's online version.

This is the online version of the "offical" document kept and updated on the ILO website.

Declaration of Human Rights
December 10, 1948
Legislation
|
United Nations Universal Declaration of Human Rights

Summary

Click here to read our online PDF version.

This is 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 United Nation's online version.

This is the online version of the "official" document kept and updated on the United Nations website

United States Decisions and Legislation

In this section we keep decisions and legislation by United States Courts that, in our view, represent examples of LabourWatch's Guiding Principles.

Dana Metaldyne
NLRB v. Dana and Metaldyne - September29, 2007
General

Summary

The National Labor Relations Board (NLRB) voted 3-2 to overturn its policy of denying employees any access to a secret ballot vote over unionization after a union is recognized pursuant to the controversial "card check" organizing process.

Supreme Court Decision Summary
Summary of Case Law
|
A brief Outline of US Supreme Court Precedent Concerning Compulsory Unionism

Summary

This document summarizes U.S. Supreme Court decisions from 1937 to 2007 that have had significant impact on the issue of compulsory unionism in the United States

Beck
Communications Workers of America v. Beck - June 29, 1988
General

Summary

The Court determined that Congress intended the substantially "identical" authorizations of compulsory unionism arrangements in the National Labor Relations and Railway Labor Acts "to have the same meaning." The Court, therefore, held that the former statute, like the latter, "authorizes the exaction of only those fees and dues necessary to `performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.'" As a result, private-sector employees should have the same right not to subsidize union non-bargaining activities as railway, airline, and public employees, and should be entitled to the procedural protections outlined in Chicago Teachers Union v. Hudson. However, so far the National Labor Relations Board has ruled that the substantive and procedural rights of non-members are lesser under the NLRA than under the RLA and the First Amendment. See Food & Commercial Workers Local 1036 v. NLRB, 307 F.3d 760 (9th Cir. 2002); Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998).

Ellis
Ellis v. Railway Clerks - April 25, 1984
General

Summary

The Court held that the Railway Labor Act not only prohibits coerced financial support of union politics and ideological activities, but also coerced support of other activities unrelated to collective bargaining and contract administration, such as organizing, litigation not concerning an objecting employee's bargaining unit, and the parts of union publications reporting on non-chargeable activities. The Court also ruled that a "union cannot be allowed to commit dissenters’ funds to improper uses even temporarily," prohibiting "rebate" schemes under which unions collect full dues, use part for improper purposes, and only later refund that part to the employees.

Abood
Abood v. Detroit Board of Education - May 23, 1977
General

Summary

A six-member majority of the Court rejected arguments that a requirement that public employees pay agency fees to keep their jobs violates the First Amendment. The Court ruled that the agency shop as such is constitutionally valid, but only "insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Court unanimously agreed that “a union cannot constitutionally spend [objectors’] funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative."

Radio Officers
Radio Officers v. Labor Board - February 1, 1954
General

Summary

The Court ruled that compulsory unionism agreements may not be used "for any purpose other than to compel payment of union dues and fees," i.e., that employees may not be required to be formal union members and abide by internal union rules to keep their jobs.

Advancing Employee Rights
Federal or Province
Caution

In most cases you will select the province where you work.

However, select "Federal and Territories", if any of the following apply:

  • You live in Northwest Territories, Nunavut or Yukon.
  • You work as a federal civil servant anywhere in Canada.
  • You work in one of the following industries:
    • airports or air transportation
    • broadcasting - radio, television or cable television
    • telecommunications
    • banking
    • fisheries (but only if your business relates to the protection and preservation of fisheries as a natural resource)
    • shipping and navigation (including loading and unloading vessels)
    • grain handling
    • uranium mining and processing
    • certain federal crown agencies
  • You work in one of the following industries AND (a) your activities connect one province to another OR (b) extend beyond the limit of one province:
    • air transport
    • canals
    • ferries, tunnels and bridges
    • highway transport of good or passengers
    • railway transport of goods or passengers