Status Under Collective Bargaining Legislation

• Pages: 336-408

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Chapter : Status Under Collective

BargainingLegislation

: INTRODUCTION

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 | :

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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

CHAPTER : STATUS UNDER COLLECTIVE BARGAININGLEGISLATION

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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