Canada's labour laws have been upside-down for decades. For the sake of "labour peace", parliament and the provincial legislatures have granted to unions a battery of privileges that should have no place in a free society. Among other things, unions have the state-granted power to interpose themselves between individual workers and their employers, even when some of the individual workers don't want the union involved.
In a rational world, this statutory privilege would be struck down by our courts as a violation of the individual's right to freedom of association -- a right guaranteed by section 2(d) of Canada's Charter of Rights and Freedoms. Unions clearly prevent some individuals from associating directly with other individuals, and they do it coercively, by exercising state power.
On the other side of the coin, unions also prevent individuals from exercising their freedom not to associate -- in particular, their freedom not to associate with the union. Once a union has been certified for a workplace, all employees in the bargaining unit are forced to contribute part of every pay cheque to the union, even if they choose not to join. This is the consequence of the notorious "Rand formula" adopted by Canadian courts in 1946 and now entrenched in most provinces through legislation. The unions can spend the incoming dues on projects utterly abhorrent to the employees whose pockets were picked, and the employees can do nothing about it.
Canadian courts have not only turned a blind eye to these legislative encroachments on individual freedom, they have actually made things worse. For instance, the 1991 Supreme Court of Canada (SCC) decision in Lavigne v. OPSEU held that the Rand formula did not infringe freedom of association. Two judges gave the bizarre explanation that the mandatory dues payments did not imply that an employee agreed with the union on various issues, and did not prevent an employee from expressing his own personal views. Those points may be true, but they're irrelevant. Employees are still being coerced into financially supporting causes against their will. They may not care much whether other people perceive them to be ideologically aligned with the union. They just want to keep their money for uses they choose themselves -- their own clubs, groups and associations.
More recently, in the 2014 case Bernard v. Canada (Attorney General), the SCC held that employers must provide the home addresses and home telephone numbers of non-union employees to the unions. This does not violate the employees' rights to freedom from unwanted association, the court held, because -- well, just because. They never did give a reason. But it seems obvious that if I want to avoid associating with some group -- if I don't want them to pester me by phone or darken my doorstep -- I should have the right to deny them my contact information. How else can I ensure my freedom from their unwanted overtures?
Even more absurd was the 2007 case of BC Health Services. Here the SCC turned section 2(d) of the Charter completely on its head, saying that the right of unions to bargain collectively is a Charter-protected freedom of association. No, no, no! The purpose of the Charter is to protect the rights and freedoms of individuals, not groups. Certainly people should have the right to bargain collectively so long as every member of the collective is there voluntarily and can opt out of the collective at will. But if "collective bargaining" includes the power to force involuntary participants into a deal -- as it does under today's laws -- then the notion of it being a Charter right is preposterous. Does the "collective right" of a union to force its unwanted association on an employee trump the individual's right to avoid that unwanted association?
Encouraged by the success of their previous absurd collective rights claims, the unions are now asking the SCC to go one step further: to force legislators to write the laws the way the unions want them to read. This will be the issue before the court on Friday, May 16, 2014.
The Saskatchewan Federation of Labour is leading the pack of unions who seek to compel a re-write of legislation passed by the Saskatchewan government in 2008.
The Canadian Constitution Foundation has obtained intervener status in the hearing. Lawyers from the firm of McCarthy Tétrault LLP, acting pro bono on our behalf, will argue against the recognition of a so-called "right to strike" in the Charter.
Of course, we fully support the right of any individual to stop working if he (or she) so chooses. If he quits his job, his employer can hire someone else. But that's not what strikes are about. Strikes are about collective work stoppages, enforced in some provinces by law and in others by sheer intimidation, with the expectation that the employer will still hold strikers' jobs open for them no matter how long they disrupt its business.
The CCF believes it's time for the courts to undo past errors and recognize that the freedom of association guaranteed by section 2(d) of the Charter is a strictly individual right to non-interference by the state (that is, a traditional negative right), not a positive, collective right to make unwilling individuals bend to the will of unions.
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