Nova Scotia  -  No Industry Selected
Canadian Decisions
Ontario (AG) v Fraser
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 - April 29, 2011
Charter
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.

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.

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.

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.

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.

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.

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.

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.

Supreme Court Decision Summary
Summary of Case Law
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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
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