Canadian Laws: The Right of Association
One of the main principles of effective operation of a country is the abidance of laws and all legal acts that were issued in this country and are in force at the moment of some disputes or conflicts. In this respect, every person has a right to review the laws and appeal to the court in order to make everything in accordance with the laws. However, sometimes people can forget about the laws and act in accordance with their own personal beliefs and values and regulations made up under their personal principles.
The more law-abiding are citizens of the country, the more law-educated should be authorities, governments, and other units operating in the country to ensure that the laws are followed in any case. According to the case study presented in the textbook1, the unions in Canada is the concept over which there has been an excessive dispute involving court proceedings and questioning the constitutional rights of citizens.
The nature of legal disputes includes necessity of finding the most appropriate decision with regard to the interest of all parties concerned and protection of rights and freedoms in accordance with constitution and law acts that are currently in force. In other words, the unionization in Canada was protected by one government and repealed by the successive one though the second government’s decision was proven to violate the constitutional right of citizens in accordance with which they can form associations and organizations. In this respect, the Canadian Charter of Rights and Freedoms reflects a part of the Canadian Constitution and second section of it claims that people have “freedom of association.”2
Agricultural Labor Relations Act, 1994 (ALRA)
The beginning of the dispute over the unionization rights and freedoms of employees in the agricultural sector can be attributed to the 1994 when “Ontario Premier Bob Rae’s NDP government passed the Agricultural Labour Relations Act, 1994 (ALRA), extending unionization and collective bargaining rights to agricultural workers.”3 The first question that comes to my mind concerns the rights and freedoms of employees in agricultural sector before introduction of this amazing act and numerous debates that occurred as soon as it was repealed by the successive government. So, what is the role of the ALRA, 1994 in the rights and freedoms of workers in farms and their unions including right of unionization and bargaining representatives.
As such, Daphne Gottlieb Taras questions the legality of nonunion representation in Canada.4 The discussion in Taras’ article “Why Nonunion Representation Is Legal in Canada” focuses on the early twentieth century and the postwar period when the employees were not represented by labor unions as a whole labor force5; so, nonunion representation was typical of that period as well as it is now when the dispute over the rights of farmers rose due to the establishment and further repealing of the ALRA, 1994.
The laws in Canada are not perfect, neither they are in all other countries of the globe. In this respect, different scholars tried to analyze the relationship of the laws and freedoms of people with the effectiveness of their performance in the workplace and commitment to their work; other studies were devoted to the comparison of labor unions and their certification and ways of operation in terms of similarities and differences in related or neighboring countries such as the United States of America or Great Britain. As mentioned in the article by Kenneth Wm. Thornicroft, “…even within Canada, labour law is not a homogeneous entity.”6
This position advocates the diversity of the working population and possibility of them having a desire to enjoy equal rights though applied to every unique situation. Therefore, union and nonunion representations were and still are possible in Canada for employees who are engaged in different sectors of industry, commerce, and services. The more changes occurred in the laws concerning the employment and representation of unions in the field, the more legal acts were appropriate to administer the relationships between the employees and employers, government and employers, employees and government, and between other parties concerned.
The Agricultural Labour Relations Act, 1994 stipulated concerning the bargaining units that “The application of section 6 of the Labour Relations Act is subject to the modifications set out in this section.”7 In this respect, the government that was in the office in 1994 wanted to enable the employees to join associations and elect representatives who would make bargains with employers on behalf of employees as members of the labor union.
As such, it is worth mentioning the main changes occurred as soon as the Rae’s NDP government passed the Bill 40 leadin to such effect as “…the scope and application of the Act, certification requirements and procedure, the procedural and remedial powers of the Ontario Labour Relations Board…”8 The effect of the Bill 40 was rather positive though it was replaced with the bill 7 passed by the successive government as a part of the act regulating the employment relationships and unions.
Repealing of ALRA and introduction of AEPA
Though the primary focus of the present discussion is the reasons for the dispute and the basis of the conflict for each party concerned in this issue. As such, the side of the government should be analyzed as one of the parties concerned as well as the employees and unions which are the core of discussion. Every time the government makes changes in laws and legal acts, the population needs some time to realize the fact of changes, evaluate the changes in terms of benefits and drawbacks in general and for every individual, and react to the changes in this or that way. Sometimes, the information is introduced to the population in the wrong way which influences the way it is perceived.
The role of media and press is great in information wars as well is international conflicts rising as a result of wars. However, it is necessary to assess the role of press on the national level to understand why people perceived the acts regulating the relationships in the agricultural sector in different ways when introduced by different governments. Were the representatives of labor unions experienced in legal acts and their application to the extent that they managed to influence the public opinion?
Steven M. Barrett managed to clearly represent the analysis of the rights and freedoms and their protection and violation issues as discussed in the court when the employees applied to the Supreme Court of Canada so that it decided the case. In other words, it turns out that the claimants (in this case, employees and their representatives at court) were not putting the right issue under consideration.9
As such, the government does not seem to be the main evil in this story but rather the side observer who is obliged to solve this conflict in order to ensure that ever party concerned has at least a minimum of what it was asking for unless this minimum does not violate the rights of the second party.
In this case, the government is not interested in making the employees bag for certain concessions or favors because the employees of the agricultural sector are electorate as well as representatives of other sectors of education, health care, and manufacturing. So, the government introduces laws to make the situation in economy more stable and profit-oriented; another issue is that the government does not always manage to realize the theoretical plans so that all parties interested in the legal act were satisfied with the outcomes of the legal decision.
The case Dunmore v. Ontario (Attorney General) made all employees review their position toward the innovations in legal sector and legal act claimed to improve the situation; the violation of constitutional rights was not infringement of rights and freedoms of one person in this case when the rights were violated concerning thousands of employees in agricultural sector including full-time and seasonal workers.
Though the government adapted the AEPA to protect the rights of workers and ensure that all employees have the rights that do not contradict their rights according to the Canadian constitution. As stated in AEPA, every employee has “The right to participate in the lawful activities of an employees’ association.”10 As such, the act did not contain any details concerning the representations and bargaining agent which was a huge gap with regard to the concept of associations applied to labor unions and relationships between employees and employers.
The perspective of employees, in this case, was the matter of time because they did not react until they faced difficulties related to bargaining and their relations as mentioned in the Agricultural Employees Protection Act, 2002 passed by the “Progressive Conservative Premier Mike Harris’s government.”11 As soon as the employees learned about the effect of the act and its application to their working relations with employers and other parties with which they usually deal, they applied to the Supreme Court. In this respect, the main mistake the employees made concerns the way in which they described the situation and the laws they used to advocate their point of view.
As the proceedings still take place and no decision has been issued yet, “Ken Forth, chair of the agricultural industry’s Labour Issues Coordinating Committee…” claims that “Nobody believes that collective bargaining and all those other things can be institutionalized. We don’t believe they can become part of legislation.”12 Every side of the conflict should introduce a clear position in order to facilitate salvation of the problem.
The more authors of articles claim that employees should have the right for collective bargaining, the less they can provide evidence supporting the legal basis for such claims. For instance, Judy Fudge’s article reviews the earlier struggle of employees for collective bargaining and rights of association.13 However, the government provided employees with a great variety of rights but did not legalize collective bargaining due to irrelevance of this issue to the constitutional rights and freedoms of Canadian citizens.
At this point, some questions occur as response to the rising pressure of the employees’ opinion and the governmentally right and appropriate decisions oriented at the stability and economic growth rather than at growth of separate sections and economic prosperity of separate citizens. In this respect, the position of the government is quite clear whereas the position of employees as members of unions is rather advocated in various possible ways than proclaimed so that the problem was clear. What rights do they believe they have? What rights have been violated? Who, they think, are responsible for those violations?
The violation of rights, especially constitutional ones, is a huge crime whereas every accusation should have a solid ground to be valid for consideration by the Supreme Court of Canada. Though every person has a right to protect his/her freedoms issued by the constitution of the country the person lives in, there should be some reason for accusing a person or organization (governmental or nongovernmental) is violation of rights and freedoms stipulated by the constitution.
In this respect, the wording of the employees’ accusation is a bit strange compared to their desire to have a right of association and their unwillingness to operate under the AEPA, 2002 that provides them with such a right. The main reason for employees to accusing the government in violation of their constitutional rights is that they are not enabled to collective bargaining as a part of their right of association. In other words, the key problem of the present dispute is the wideness of rights and their interpretation in the framework of legal acts.
Protection and Violation of Rights
The protection of rights is an integral part of the governmental duties with regard to the role of the government in the life of population and attitude of the government towards its electorate. Every time an individual claims that the government violates his/her rights, this person should prove that using the documentary evidence of such rights and equally strong evidence of their violation. The documentary evidence, in this case, is the constitution of a legal act that guarantees certain rights to the citizens of the state; sometimes, the rights concerns specific categories of people such as employees of a particular sector of industry when they are members of labor unions and other associations permitted by law.
Though the issue of unionization does not seem to be the burning issue of contemporary Canadian society, it is claimed to be a problem by Cynthia J. Cranford and Deena Ladd who report about the effects of unemployment and poor conditions for unionization. For instance, the authors say that unionization can be considered as a sign of development and growth of the community.14
The right of association is an integral part of the Canadian Charter of Rights and Freedoms that is also a part of the Constitution of Canada. This fact can be treated as a strong evidence for regulation of the employment relations in the way they are treated at the present moment because it is impossible to see any kind of violation of constitutional rights in the decision of the government to provide the right of association in the framework of the employment protection act aimed at protecting the rights of employees in the agricultural sector. At the same time, it is necessary to review the employment protection acts issued for employees that are engaged in other activities than agricultural.
For instance, it is possible to analyze the relationships between employees in commerce and trade unions with their employers and government and their right of association and the issue of collective bargaining that arises at this point. Every employee should be able to enjoy rights and freedoms issued in the constitution as well as in employment protection acts regardless of the field of specialization excluding the activities stipulated in those acts.
The protection of the constitutional rights and freedoms is possible in case of their violation because the constitution is the main legal act that stipulates rights and duties of citizens under which they are able to operate. Every time a citizen of Canada claims about violation of his/her rights, there should be some evidence of that act which can serve as the reason for accusation of another person or organization.
Comparison of the sections of constitution with the real situation can serve as the basis for accusation. For instance, when a person is aware of his/her rights and experience their violation by another person or organization, he/she can support the idea of violation after providing analysis of the rights and unlawful actions. In case of employees of the agricultural sector, they should provide clear evidence of the government violating their rights and constitutional freedoms such as the right of associations and equality rights. As such, Felice Martinello compares the advantages and disadvantages of the Bill 40 issued by Bob Rae’s NDP government and Bill 7 issued by the Progressive Conservative Mike Harris’s government.15
Andrew Coyne reviewed the situation with labor unions and the prerogatives the employees have as a part of the labor union membership when the entire group of people is represented by a few who advocate their interests and struggle with the employers and government; at the same time, the only thing employees usually do while waiting for the decision of authorities of court includes striking that greatly influences the business and revenue leading to reduction of wages for employees who start their strikes to get their money back.16
Every time a strike take place, employees only think about the fact that their rights are violated without realizing the influence of strike on productivity and, consequently, on revenue and their wages. At this point, equal rights for all employees in terms of the right of association are possible and guaranteed by the law unless employees have an alternative interpretation of the constitution and other legal acts stipulating the rights and freedoms of people including the relationships in different sectors of industry. Nevertheless, the number of applications to the court decreased even with regard to the difference in the employee protection acts issued by different governments.17
Decision on the Case
The reason why employees accuse the government in the violation of their constitutional rights is that they do not realize the difference in the rights and prerogatives they would like to have as a part of the employee protection act project issued by any government. The problem is that the legalization of the collective bargaining issue is problematic on one hand and inappropriate on the other because special conditions in one area would inevitably lead to strikes and dissatisfaction demonstrations in other areas either related or irrelevant to the area of main concern at the moment. In this respect, the employees should formulate their accusations carefully in order not to provoke a flow of similar dissatisfaction campaigns in other areas of activity.
The actions of employees would be more appropriate if they were aware of the possible consequences of their actions and opportunities the government has to change the situation. Besides, equality rights do not presuppose that all employees would be deprived of the rights and freedoms. The main aspect of the constitutional rights is that they are based on the university principles and are designed in order to make all people equal in terms of their rights and possibilities.
As such, employees have the right of associations which does not include collective bargaining rights though the employees may, in some way, negotiate this aspect with employers and the government instead of accuse everyone in violation of their constitutional rights.
The possible consensus may be reached only through negotiations or rearrangement of the labor union system so that it was applicable in terms of laws used in this area. For instance, employees may offer solutions to problems and vote instead of signing certificates without knowing what problem they are influencing with the help of their signatures in the hands of labor union’s representatives. In other words, every employee should think about the problems and possible solutions instead of passing the voting capacities to third parties. The right to decide is not used in the present system of certification whereas employees can widely use their rights instead of fighting against invisible enemies that can turn out to be their friends.
Bibliography
Agricultural Employees Protection Act, 2002. Web.
Agricultural Labour Relations Act, 1994. Web.
Barrett, Steven M., “Dunmore v. Ontario (Attorney General): Freedom of Association at the Crossroads” (2001) 10 Canadian Labour and Employment Law Journal 83-116. Web.
Canadian Charter of Rights and Freedoms, 1982. Web.
Coyne, Andrew, “The Biggest Hurdle To Reform: Unions” (2011) 124:8 Maclean’s. Web.
Cranford , Cynthia J., and Ladd, Deena, “Community Unionism: Organising For Fair Employment In Canada” (2003) 3 Just Labour 46-59. Web.
Elliott, David W. (ed.), Introduction to Public Law: Readings on the State, the Administrative Process, and Basic Values, 6th ed (North York: Captus Press, 2007).
Fudge, Judy, “Labour Is Not a Commodity: The Supreme Court of Canada and the Feedom of Association” (2004) 67 Saskatchewan Law Review 425.
Mann, Susan, “Decision on Agricultural Workers’ Bargaining Rights Still Months Away” (2009). Web.
Martinello, Felice, “Mr. Harris, Mr. Rae and Union Activity in Ontario” (2000) XXVI:1 17-33.
Roberts, Lance W., Recent Social Trends in Canada, 1960-2000, (Quebec: McGill-Queen’s Press – MQUP, 2005).
Slinn, Sara, “The Effect of Compulsory Certification Votes on Certification Applications in Ontario: An Empirical Analysis” (2003) 10 Canadian Labour and Employment Law Journal 367-397. Web.
Taras, Daphne Gottlieb, “Why Nonunion Representation Is Legal in Canada” (1997) 52:4 Industrial Relations, 763.
Thornicroft, Kenneth Wm., “Unions, Union Dues, and Political Activity: A Canada/U.S. Comparative Analysis” (1990) 41:12 Labor Law Journal 846-855.
Footnotes
- David W. Elliott, ed., Introduction to Public Law: Readings on the State, the Administrative Process, and Basic Values, 6th ed. (North York: Captus Press, 2007).
- Canadian Charter of Rights and Freedoms, 1982. Web.
- David W. Elliott, ed., Introduction to Public Law: Readings on the State, the Administrative Process, and Basic Values, 6th ed. (North York: Captus Press, 2007).
- Daphne Gottlieb Taras, “Why Nonunion Representation Is Legal in Canada” (1997) 52:4 Industrial Relations 763.
- Daphne Gottlieb Taras, “Why Nonunion Representation Is Legal in Canada” (1997) 52:4 Industrial Relations 763.
- Kenneth Wm. Thornicroft, “Unions, Union Dues, and Political Activity: A Canada/U.S. Comparative Analysis” (1990) 41:12 Labor Law Journal at 846.
- Agricultural Labour Relations Act, 1994. Web.
- Sara Slinn, “The Effect of Compulsory Certification Votes on Certification Applications in Ontario: An Empirical Analysis” (2003) 10 Canadian Labour and Employment Law Journal at 368. Web.
- Steven M. Barrett, “Dunmore v. Ontario (Attorney General): Freedom of Association at the Crossroads” (2001) 10 Canadian Labour and Employment Law Journal at 108-109. Web.
- Agricultural Employees Protection Act, 2002. Web.
- David W. Elliott, ed., Introduction to Public Law: Readings on the State, the Administrative Process, and Basic Values, 6th ed. (North York: Captus Press, 2007).
- Susan Mann, “Decision on Agricultural Workers’ Bargaining Rights Still Months Away” (2009). Web.
- Judy Fudge, “Labour Is Not a Commodity: The Supreme Court of Canada and the Feedom of Association” (2004) 67 Saskatchewan Law Review 425.
- Cynthia J. Cranford , and Deena Ladd, “Community Unionism: Organising For Fair Employment In Canada” (2003) 3 Just Labour 46 at 51.
- Felice Martinello, “Mr. Harris, Mr. Rae and Union Activity in Ontario” (2000) XXVI:1 17.
- Andrew Coyne, “The Biggest Hurdle To Reform: Unions” (2011) 124:8 Maclean’s. Web.
- Lance W. Roberts, Recent Social Trends in Canada, 1960-2000, (Quebec: McGill-Queen’s Press – MQUP, 2005).