Status Under Collective Bargaining Legislation

Chapter : Status Under Collective
Collective bargaining is an important component of Canadian labour policy. The reach of
the collective bargaining regime is therefore both a hotly contested political issue and the
subject of extensive litigation, with repercussions for those who are included or excluded
from its ambit. Not everyone is entitled or required to bargain collectively under prevailing
labour relations legislation. This chapter is about the status of those so aected: employees,
unions, and employers.
The right to join a union and thereby engage in collective bargaining is reserved for
“employees.” The meaning of “employee” is increasingly dicult to determine, given the
growing variety of contractual arrangements in the labour market, such as those that apply
to operators of food franchises, people who work from their homes as consultants or con-
tractors, workers in the so-called gig or sharing economies supplying services through online
platforms, and casual workers sent by employment agencies. The problem of how to char-
acterize workers in these developing variants of traditional employment is not restricted to
collective bargaining; it also arises in assessing whether such workers are covered by legis-
lation on such matters as employment standards (see Chapter ), unemployment insur-
ance, workers’ compensation, pensions, and occupational health and safety.
Moreover, some people who are employees by any denition may be legally ineligible
to bargain collectively. If they work for certain kinds of employers typically those in the
public and quasi-public sector they may be barred from collective action or are required
to bargain under more restrictive procedures than those set out in general labour relations
legislation. If they are employed in certain occupations predominantly the professions,
agriculture, and domestic service they may be entirely excluded from statutory collective
bargaining because legislatures have concluded that it is inappropriate or unworkable for
them. Even employees who work at conventional jobs that fall under ordinary labour legis-
lation are denied the right to bargain collectively if they have signicant responsibility for
representing management in its relations with workers and unions, or if they have other
important managerial responsibilities. The rationale for this restriction is that such employ-
ees would nd themselves in a conict of interest.
Even if a person is clearly an employee eligible for inclusion in collective bargaining, it
is not always clear who her legal employer is. An entrepreneur may set up a complex and
confusing corporate structure, perhaps for legitimate business reasons or perhaps to avoid
obligations under labour or tax legislation. The restructuring of companies, and the growth
of outsourcing and more exible methods of production, may mean that workers who were
Introduction | :
once employed by, say, an automobile manufacturer, are now employed by a dierent entity
that is part of that manufacturer’s tightly integrated network of suppliers.
As for employee organizations, they are of many kinds, both in the workplace and out-
side of it social clubs, groups based on a common ethnic or religious identity, and so
on. In order to fall within the statutory denition of a trade union, and therefore be eligible
to acquire the privileges and responsibilities of a bargaining agent under labour relations
legislation, an organization must have been formed for purposes that include collective rep-
resentation of its members vis-à-vis their employer. In addition, other questions may arise in
determining whether an organization that claims union status is indeed eligible to represent
workers. For example, does the organization have sucient structure and permanence to
represent workers eectively? Should it have the right to function as a collective bargaining
agent if its internal decision-making processes are not democratic? These are important
public policy questions, and the answers to them may aect the balance of power in the par-
ticular workplace and across the whole economy.
The advent of collective bargaining does not invariably improve the position of employees,
nor does denial of access to collective bargaining always disadvantage them. For example,
under some labour relations statutes, domestic and agricultural workers are denied collect-
ive bargaining rights because of what are often seen as anachronistic or disingenuous argu-
ments about the need to protect the sanctity of the household or the family farm. However,
even where those groups have been given bargaining rights, they have seldom been able to
use them to much eect. Conversely, medical doctors generally are not employees by any
denition and do not formally bargain collectively under conventional labour legislation,
but they have been very successful in advancing their economic interests through lobbying,
negotiations, public appeals, and even work stoppages. These two examples (the former
involving the powerless, the latter involving the powerful) suggest that there are limits to
the eectiveness of our collective bargaining laws in reducing income disparities in society.
In recent decades, fundamental changes in our economy have called into question the logic
that underlies the boundaries drawn by labour relations legislation around the right to bargain
collectively. That logic is based on the assumption that the legislation will be used by certain
kinds of people, namely skilled and semi-skilled blue-collar workers in relatively stable employ-
ment relationships with corporate enterprises structured on a traditional hierarchical basis.
This assumption may have been reasonably accurate when collective bargaining legislation was
introduced during and shortly after World War II. It has become less accurate as rapid changes
in technology have inuenced the shape of employment and corporate organization in the new
economy. Will unions be able to organize the growing number of highly skilled knowledge work-
ers employed in organizations where managerial authority is less clearly dened?
At the other end of an increasingly polarized workforce, an even greater challenge for
unions is what to do about unorganized workers in the expanding secondary labour market.
These employees may often work on a part-time or casual basis and may need to hold more
than one job to make ends meet. The precariousness of their employment raises the ques-
tion whether, even as a collective, they could muster enough power to bargain eectively
under existing labour relations legislation.
As large rms break down into much smaller production units, creating what David Weil
has described as “the ssured workplace,” the attachment of collective bargaining rights to the
individual rm — a cornerstone of our present system — may further limit employee bargaining
power. It can be argued that our present collective bargaining system only works well in large
rms, where unions can collect enough revenue from dues to be able to bargain eectively and
where the rm itself has the economic and political leverage to pass on the costs of collective
bargaining settlements to society at large. Perhaps it is time to re-examine the assumption that
access to collective bargaining should depend on a proximate relationship with a particular
employer, and to look instead to the worker’s attachment to a particular industry.
It may also be time to re-examine who should and should not have access to collective
bargaining, and with what consequences. Very auent “employees” such as elite profes-
sional athletes may appear to have no need for collective bargaining, but they enjoy the right
to engage in it and they do so very eectively. Distinctly less advantaged “employees” non-
elite musicians and writers, for example may well need collective bargaining, but cannot
have it under ordinary labour relations legislation because they lack a specic employer with
whom they can bargain in any conventional sense. Some small businesspeople, such as
consultants and the owners of franchised food outlets, may be at the mercy of a single pro-
vider of supplies or work opportunities, but they still have no access to collective bargaining.
Other people with small businesses for example, doctors paid on a fee-for-service basis
by government health plans, and lawyers paid by legal aid plans — also have no employer in
the conventional sense, but nevertheless manage to bring collective pressure to bear on the
source of their income (the government).
Each of these cases presents special problems. If the workers concerned are not covered
by labour relations statutes, they may be covered by special legislation. This is the case, for
example, with artists and performers who are subject to the federal Status of the Artist Act, SC
, c . Doctors and legal aid lawyers may operate under special bargaining and dispute
resolution procedures established by statutes, regulations, agreements between the govern-
ment and professional bodies, or unwritten understandings. In the absence of such arrange-
ments, collective activities are regulated by the general law of the land. The federal Competition
Act, RSC , c C- (referred to briey at the end of Section :) is very important in this
regard. It provides for criminal, administrative, and civil sanctions. Also important is the com-
mon law of tort (discussed in Chapter ). It gives plaintis who are adversely aected by cer-
tain kinds of collective economic sanctions the right to sue for damages or injunctions.
The express exclusion from collective bargaining legislation of managerial employees
and those employed in a condential capacity relating to labour relations raises a dierent
concern. This exclusion reects the classic adversarial paradigm of collective bargaining,
which posits a divergence of interest between workers and management and their neces-
sary separation into opposing camps. The appropriateness of that paradigm becomes more
questionable as external economic forces generate pressure for greater labour-management
co-operation, even within the largest corporations. In addition, the emergence of a large
group of knowledge workers, and an increasing emphasis on non-hierarchical and participa-
tory management, suggest that the present managerial exclusion may be overly broad.
Similar concerns arise when considering what types of organizations are granted status
as trade unions under collective bargaining legislation. Because of a considerable history of
employer co-optation of bodies seemingly set up to encourage labour-management co-oper-
ation, unions are often wary of participating in such bodies. Collective bargaining legislation

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