Academic journal article International Journal of Employment Studies

Collaboration between Unions in a Multi-Union, Non-Exclusive Bargaining Regime: What Can Canada Learn from New Zealand?

Academic journal article International Journal of Employment Studies

Collaboration between Unions in a Multi-Union, Non-Exclusive Bargaining Regime: What Can Canada Learn from New Zealand?

Article excerpt

INTRODUCTION

Canadian union certification and representation are characterised by majoritarianism and exclusivity. The system is majoritarian in the sense that workers' access to union representation critically depends upon whether the union can secure majority support from the relevant bargaining unit of workers, either through an election or, in most jurisdictions in Canada, 'on the cards. (1) If a union can only garner minority support, workers are denied union representation; they must continue to contract individually with the employer. The system is exclusive in the sense that, once a union is certified to represent a particular bargaining unit, no worker in that bargaining unit may be represented by another union in negotiating an alternative collective agreement. The exclusivity principle also gives the certified union sole control over pursuing personal grievances on behalf of one or more workers in the bargaining unit. Although unions have a duty to fairly represent employees in personal grievances cases, unions still maintain the final say on how, when, and whether to pursue such grievances. Such a system is the polar opposite of New Zealand's, where multiple unions may represent workers from the same work group, even when there is no majority support for any particular union. Drawing on the New Zealand experience, this paper explores the implications for Canada of legislatively supporting multi-union and non-majority union representation. In particular, this paper examines the issue of inter-union collaboration, an area largely under-studied because of a general belief that multi-unionism is necessarily associated with chaos and conflict rather than cooperation.

The majoritarian and exclusivity principles contravene the International Labour Organisation's (ILO) conventions #s 87 and 98 (Adams, 2009a; 2009b). These conventions together establish rights to organise into unions (workers' organisations), bargain collectively through these unions, and strike, as fundamental human rights. For instance, Convention 87 states that "workers and employers, without distinction whatsoever, shall have the right to establish, and subject only to the rules of the organisation concerned, to join organisations of their own choosing ..." Because of majoritarian exclusivity, Canadian workers may not bargain collectively through an organisation of "their own choosing", if a majority of the co-workers in their bargaining unit has chosen (for example, voted for) a different union. However, the ILO's Committee on Freedom of Association and its Committee of Experts are prepared to accept such a restriction on freedom of association as reasonable, because workers in these circumstances have some access to collective representation, even if it is not their most preferred (Adams, 2009a, 2009b). On the other hand, if a majority of co-workers opposes having a union (for example, votes against it), workers in the minority have no right to organise into workers' organisations (such as unions, staff association), bargain collectively, and strike. It is this scenario which is seen as particularly problematic by the ILO committees, because it effectively denies any form of collective representation to those in the minority who might want it (ILO, 1994).

In recent years, the Supreme Court of Canada (SCC) has invoked ILO principles in deriving a constitutional right to organise and bargain collectively as key dimensions of the freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (Fudge, 2008). In BC Health Services, the SCC alluded to ILO documents in acknowledging that the freedom of association encompasses the activities of labour unions such as organising and collective bargaining (Fudge, 2008). It also argued that "the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified," (2) again referring to ILO documents. …

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