The Rand formula revisited: union security in the Charter era.

• Author: Parkes, Debra
• Position: Canada

It is more than sixty years since Supreme Court of Canada Justice Ivan Rand was appointed as sole arbitrator to bring an end to the ninety-nine day Ford Windsor strike in 1945-46. (1) The interests of thousands of workers, including many returning from the war, and of companies intent on returning to the pre-war era of greater control over workers collided on the picket lines. At its height, 19,000 workers were on strike, the streets of Windsor were blockaded with cars, and hundreds of R.C.M.P. officers were called into the area. (2) A key demand was "union security" (3) including requirements that all workers be union members and that Ford deduct union dues from workers' paycheques ("dues check-off"). The company bitterly opposed both mandatory union membership and dues check-off. The strike finally ended with Justice Rand finding a compromise between the two positions.

The "Rand formula"--denying the union's call for mandatory union membership but requiring the employer to deduct union dues from all workers, whether union members or not--has become a bedrock principle of collective bargaining in Canada. Labour legislation in all Canadian jurisdictions permits, (4) or even requires, (5) dues check-off on the Rand model and many union leaders consider it essential to the survival of unions. (6) The Supreme Court of Canada has upheld the Rand formula as a "reasonable limit" on the individual freedom of association of workers who oppose having their compelled union dues used to fund political causes supported by the union. (7) Yet a 2002 poll found that 76% of Canadians supported the statement that "employees should not be legally required to pay dues to a union that they don't want to join. (8)

Opposition to union security clauses is cast in the language of "individual freedom," specifically the "freedom to not associate" as part of the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms. The first two decades of Charter litigation by and against unions were not particularly favourable to union interests. (9) Until recently, the Supreme Court of Canada had largely interpreted freedom of association as an individual right that does not protect key union activities such as the right to bargain collectively, (10) to strike (11) or even to form a trade union at all. (12) The Court has openly struggled with how to reconcile the collectivist aspects of Canadian labour law with the individual nature of rights in a liberal democracy. The "freedom to not associate" cases, Lavigne (13) and Advance Cutting, (14) involving challenges to union security agreements or laws, represent successes for unions in Charter litigation which were rare at the time they were decided. More recently, the Supreme Court of Canada has accorded more constitutional protection to labour rights than followers of its earlier jurisprudence would have thought possible. In a 2007 decision, the Court held that "the section 2(d) guarantee of freedom of association protects the capacity of members of labour unions to engage in collective bargaining on workplace issues." (15)

This article begins by briefly highlighting key aspects of the Ford decision. It next examines the Supreme Court of Canada decisions upholding union security provisions in the face of Charter challenges by dissenting workers, noting the lasting appeal of various aspects of the Rand compromise, including his deliberate attempt to balance individual and collective interests and his requirement that unions be responsible and democratic. The paper concludes by looking at some recent legislative initiatives and developments that indicate that the Rand formula, while not under direct attack, is by no means sacrosanct in the political realm.

THE RAND COMPROMISE

Justice Rand staked out a middle ground between the positions of the union and the employer over union security, based on a view of organised labour as a counterweight to capital in a regulated system of collective bargaining. He said,

... the power of organised labour, the necessary co-partner of capital, must be available to redress the balance of what is called social justice; the just protection of all interests in an activity which the social order approves and encourages. (16) However, Justice Rand was no labour radical. (17) In the third paragraph of the Ford decision, he stated:

Any modification of relations between the parties here concerned must be made within the framework of a society whose economic life has private enterprise as its dynamic. (18) Justice Rand believed that if unions were to have any hope of acting as effective "co-partners" of capital, they would need resources. Therefore, he decided that a system of dues check-off was necessary to ensure financial stability and to prevent free-riders. According to Justice Rand,

... the employees as a whole become the beneficiaries of union action, and I doubt if any circumstance provokes more resentment in a plant than this sharing of the fruits of unionist work and courage by the non-member.... It would not then as a general proposition be inequitable to require of all employees a contribution towards the expense of maintaining the administration of employee interests, of administering the law of their employment. (19) Justice Rand was also a civil libertarian (20) who wrote a number of influential decisions that came to embody the so-called "Implied Bill of Rights" (21) in the pre-Charter era. He was against the idea of compelled union membership, saying:

... it would deny the individual Canadian the right to seek work and to work independently of personal association with any organized group. It would also expose him even in a generally disciplined organization to the danger of arbitrary action of individuals and place his economic life at the mercy of the threat as well as the action of power in an uncontrolled and here an unmatured group. (22) The Rand formula offered an individual/collective rights compromise in the liberal democratic tradition. It was an integral part of the post-war model of Canadian labour relations. (23) In this model, capitalism is taken for granted and, in a liberal political democracy, labour and capital are juridical equals" (24) and partners in a regulated system of collective bargaining. Dissenters are free to opt out of union membership, but they can be compelled to pay for the collective goods gained by the union. In exchange for the financial stability gained by dues check-off, unions must be responsible and democratic. (25)

Justice Rand developed some of these themes in his speeches and articles on labour law, (26) as well as in his work as Commissioner of the Royal Commission Inquiry into Labour Disputes. (27) For example, to remedy what he considered the "irrationality of barbarism" in labour disputes of the day, he expanded his idea of responsible unionism, (28) to require, among other measures, a secret ballot vote before a union could take strike action. (29)

Justice Rand's legacy can be found throughout Canadian labour law and in collective agreements across the country. In the decades following the Ford decision, the Rand formula became a common feature of many collective agreements and, by the 1980s, was included in a number of labour codes. (30)

THE CHARTER AND UNION SECURITY

Following entrenchment of the Canadian Charter of Rights and Freedoms in 1982, opponents of union security clauses attempted to test their constitutionality against the freedom of association guarantee found in section 2(d) of the Charter. However, the courts dismissed those early challenges on the basis that the union security provisions were not the result of government action (the private sector unions and employers were not government actors and the legislation only permitted, rather than mandated, union security clauses). (31)

LAVIGNE v. ONTARIO PUBLIC SECTOR EMPLOYEES UNION

In Lavigne v. OPSEU (32) (1991), the Supreme Court of Canada considered a Charter challenge to the use of dues collected under the Rand formula. Did freedom of association include a negative "freedom not to associate" and, if so, does that right render some union security arrangements unconstitutional? In a lawsuit financed by the National Citizens' Coalition, (33) the Court considered whether freedom of association was infringed by provincial legislation permitting a Rand formula dues check-off clause to be included in a collective agreement between public community colleges and college employees. (34) Mervyn Lavigne, a community college instructor, objected to the fact that a portion (35) of his union dues to the Ontario Public Service Employees' Union (OPSEU) were used to support campaigns for abortion rights, striking mine workers in the United Kingdom, and the New Democratic Party, all causes he opposed. Lavigne did not challenge the constitutionality of deducting union dues for collective bargaining purposes, but only the use of "his" money for "non-collective bargaining purposes."

To the relief of unions across Canada, (36) the Supreme Court of Canada unanimously dismissed the Charter challenge, (37) although its three opinions revealed differing reasons for reaching that conclusion. In considering the scope of the "freedom to not associate," all seven members of the Court agreed that deducting union dues for collective bargaining purposes did not violate associational freedom, even where employees objected to it or to unions generally. In an opinion written by Justice Wilson, three rejected the notion that section 2(d) included a negative freedom to not associate at all. (38)

Justice La Forest, on behalf of himself and two others, (39) held that freedom of association included a freedom from "compelled association" going beyond the kind of forced association that is "necessary and inevitable" in a democracy. (40) The mandatory deduction of union dues to fund collective bargaining activities was a form of...