In unity there's strength!

Abstract

FOCUS □ COLLECTIVEBARGAINING In unity there's strength! Canadian union leader James Clancyresponds to pointsraised by lUR'sRoyAdams aroundthe rights ofminority unions JAMES CLANCY isthe national president of the National Union of Public and General Employees ('NUPGE'), one of Canada's largest labour organisations In Issue his a article recent 2, 2010), 'Applying edition Professor of the IUR Ruggie Roy journal Adams Framework (Volume argues 17, in in Issue 2, 2010),Professor RoyAdamsarguesin hisarticle 'Applying theRuggieFramework in Canada' that'majoritarianism does notfulfil the obligation ofthestateto promote collective bargaining '. His viewis thatmajoritarianism has the effect ofexcluding workers from theprocess.To ensurethebroadestcollective bargaining coverage forworkers, Professor Adams arguesthat 'workersshould be able to negotiatethrough independent, non-certified, non-majority associationsifthey wanttodo that'. WhileI recognise and praiseProfessor Adams' commitment toadvancing workers' rights herein Canada and internationally, and supporthis premisethatthereis a place fornon-majority unionsinadvancing workers' rights, I alongwith almostthe entirelabourmovement in Canada, strongly support therelianceon majoritarianism within theCanadianlabourrelations framework. I believethat non-statutory alternative forms of representation canplaya roleinadvancing workers 'rights inthoseworkplaces wherea unionhas notbeen able to convincethemajority ofworkers to signup as members. Atthe same time, however,I recognisetheirlimitedabilityin empowering workers to fully exercisetheir collective bargaining rights. Simply havingtheright to collective bargaining does notguarantee the processwillsucceedtothebenefit ofworkers. Froma Canadianlabourrelations perspective, majoritarianism and bargaining agentexclusivity has been effective inproviding workers withthe necessary powerto advancetheir collective bargainingrights . In myview,ittherefore mustbe defended vigorously. Professor Adamsis correct in sayingthat'the pathto certification is strewn withobstacles'.In factin the past threedecades,therehave also been 63 instances wherefederaland provincial labourlaws in Canada have been amendedto further restrict unions'ability toorganise. I do not believehoweverthisis reasonenoughto move awayfrom theconceptofmajoritarianism which hasbeencentral toCanadianlabourlawforover a century. Anylabourrights advocatewillassert that every worker shouldhavetheright tobe represented by organisations oftheir own choosingforthepurpose ofbargaining collectively withtheir employer .AsProfessor Adamscorrectly points out,thisis a recognised international humanright. Based on labourrelations history and practices in Canada, however,a union has littleor no negotiating leverageindealingwiththeemployerunlessitrepresents themajority ofworkers in theworkplace andunlessthere isa legalduty on theemployer to negotiate ingood faith. Therecan no better case madeformajoritarian exclusivity inlabourrelations thanthethoughtful and compellingargument presentedby Chief Justice Warren Winkler inhisruling on theFraser vsOntario case attheOntario Court ofAppealin November 2008.Thisimportant case involves the denialofcollective bargaining rights foragricultural workers in Ontario, Canada's largest province. The case subsequentlyhas been arguedbeforetheSupremeCourtof Canada in December2009and theCanadianlabourmovementis cautiously optimistic that we willreceive a favourable ruling. In his 2008 ruling, Winkler concludedthatif collective bargaining is tobe meaningful, itmust be backed up by a framework thatcontains amongstotherlegal requirements a statutory recognition of the principles of exclusivity and majoritarianism. To quotefrom Justice Winkler's decision: 'Exclusivity provides workers with a unified, and thus, a moreeffective voice fromwhich to promote their collective workplace interests. Exclusivity isa keytomitigating thehistorical inequality between employers and employees, bringing abouta moreequitable balanceof powerin theworkplace. Majoritarian exclusivity isessential toensure thisbalanceofpower. Notonlydoesitempowera bargaining representative in itsdealings with theemployer, at thesametime itconfirms totheemployer thatthebargaining representative speakswith thesupport ofthe preponderanceoftheemployees . Assuch,thenotion ofmajoritarian exclusivity isa corevaluein anyvibrant collective bargaining system in Canada Fraser v. Ontario (Attorney General), 2008ONCA760 To argue againstmajoritarian exclusivity is to ignorebothitsequitability and effectiveness in providing balancetooursystem ofcollective bargaining , a system thathas been and alwayswill be adversarial innature. I fullysupportProfessor Adams' contention thatall workers shouldbe able to exercisetheir fundamental humanright to collective bargaining .Butifcollective bargaining is to be meaningful in advancing thewell-being ofworkers it must empower workers intheir dealings with the employer. Andtheonlywaythiscan be accomplishedis by a majority of employeesjoining together and speaking withone voice. It supports twofundamental principles ofthe labourmovement: 'united we stand,dividedwe fall'and 'inunity there's strength'. INTERNATIONAL union lights Page 14Volume 17Issue 4201 0 ...