Prof. Brian Langille and JD student Josh Mandryk: "Ontario PC labour reforms violate core democratic principles"

Without exception, commentators have missed something very basic about the Ontario PCs proposal to introduce American-style right-to-work legislation and undo the Rand Formula.

And that is the fact that they are not proposing to introduce American-style right-to-work legislation or undo the Rand Formula at all. Rather, they are attacking something even more fundamental to the North American model of labour relations: the basics of its democratic system of government.

The fact that they aren’t taking issue with the Rand Formula was clearly stated by Ontario PC labour critic Randy Hillier this past January in a Windsor Star article in which he wrote that the decision which led to the Rand Formula was “fair and sensible and our proposal stands by that decision.” He went on to state that his proposal “would be consistent with the intent behind the Rand Formula and would not change the way free riders are handled.”

Rather, the reforms the PCs propose, as presented in Hillier’s http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&Bil..., would repeal Section 45(1) of the Ontario Labour Relations Act which makes the union the exclusive bargaining agent for all employees in the bargaining unit. They would replace it with a new Section 45(1) that would make the union the exclusive bargaining agent for bargaining unit employees who are members of the union, but not for those who are not. Employees who choose not to be members of the union would then be left to bargain individually with their employer while the union would still bargain collectively for member employees. Thus, their proposal would not simply allow bargaining unit employees covered by a collective agreement to opt-out of paying dues, as with American-style right-to-work, but would allow bargaining unit employees to opt out of collective bargaining and the collective agreement entirely. These are two radically different proposals.

Majoritarianism and exclusivity are the core democratic principles underlying our model of labour relations.

Majoritarianism refers to the principle of majority rule in union certification and internal union democracy. If 50 per cent of the workers in the bargaining unit vote to form a union, majority rules. The flip side is that workers who wish to form a union cannot do so unless a majority of their co-workers vote to do so as well.

Exclusivity refers to the fact that once a majority of workers in a bargaining unit vote for a union, that union becomes the exclusive bargaining agent of all employees, preventing other unions from representing workers in that unit as well as preventing individual contracts of employment for bargaining unit employees.

These are the same democratic principles that underlie our political democracy. The principles are very simple and familiar. You may not have voted for Stephen Harper’s Conservatives but that does not mean you do not have to pay your taxes. You cannot opt out. And it also means the federal government cannot exclude you from medicare coverage and so on because of how you voted. The government cannot “opt you out.” They are the government for everyone. This is how our democracy works. This is what the PCs propose to dismantle.

There is more. The Ontario PCs do not intend to do away with majoritarianism and exclusivity in their entirety. Doing so would open the door to minority unions, which would provide meaningful access to collective bargaining for workers in industries like banking and food services which have proven impervious to organizing under our model of labour relations. As they would have it, the benefits of majoritarianism and exclusivity would be repealed, but the burdens would remain intact. Those in the minority have no right to seek representation at all.

The PCs would like to have it both ways, but they are wrong to do so for two reasons.

First, employers should give pause before supporting these reforms. The advantage of our current democratic system is obvious for employers. As Ontario Chief Justice of Ontario Warren Winkler (who before being a judge was a prominent management-side labour lawyer) recently put it: “It is not overstating the point to say that to avoid chaos in the workplace to the detriment of the employer and employees alike, it is essential that a representative organization be selected on a majoritarian basis and imbued with exclusive bargaining rights.”

Second, on any plausible theory of democracy an attempt to do away with majoritarianism and exclusivity necessitates discarding majoritarianism and exclusivity in their entirety. The PCs should therefore proceed with caution, or their labour law reforms might end up giving them more than they bargained for.