In April, Alberta elected the right-wing United Conservative Party (UCP) to a majority government, ending the one term reign of the left-of-centre New Democratic Party (NDP). The UCP ran on a platform that included a familiar array of conservative policies, including corporate tax cuts and, of interest to us, labor law reform aimed at weakening unions. Alberta has long owned the lowest unionization levels of any jurisdiction in Canada, with private sector union density sitting at about 10 percent. The UCP perceives even this low level of collective bargaining as deeply problematic.
A Familiar ‘Open for Business’ Agenda
There wasn’t a lot novel in the UCP’s Platform in terms of labor law. The usual claims are there about “bringing balance back to labor law”; every labor law reform in Canadian history was purportedly to “modernize” and “restore balance and fairness.” The UCP Platform regurgitated the tired “Open for Business” slogan popular with conservative strategists worldwide. Under the Open for Business banner a conservative government in Ontario during the 1990’s introduced mandatory union certification ballots for the first time in that province’s history, replacing the long-standing card-check model. The Conservative Party argued that the move would create jobs because U.S. companies would flock north of the border once the familiar ballot method long used under the NLRA was installed.
Academic studies in Canada demonstrate that union success rates in certification applications decrease by about 20 percent and that employer opposition campaigns, including unfair labor practices, are more effective at discouraging unionization when mandatory ballots replace card-check as the test for assessing employee support for collective bargaining. “Open for Business” means impeding the growth of collective bargaining and weakening union strength.
It therefore came as no surprise that the “Open for Business” UCP would restore mandatory ballots as one of its first orders of business. The introduction of card-check certification by the NDP in 2017 had provided Alberta unions with a much needed but ultimately short-lived boost in organizing success. In Bill 2, An Act to Make Alberta Open for Business, which passed in early July, the UCP re-introduced mandatory ballots.
But Bill 2 is likely just the first shoe to drop, squeezed in before the summer legislative recess. The UCP Platform also promised to repeal the NDP’s prohibition on the use of strike replacement workers, and to introduce new requirements for the Labour Board to provide legal support to unionized workers, “in order to better understand and exercise their rights.” The details of this requirement remain uncertain, but the 1990s “Open for Business” Ontario Conservatives required employers to educate their employees on how to decertify their union.
Importing the United States’ Agency Fee Model
While most of the ideas in the UCP Platform respecting labor law are rehashed, there is one noteworthy promise in the document. Buried on page 22, there is a promise by the UCP to:
Protect workers from being forced to fund political parties and causes without explicit opt-in approval.
If enacted, this law would make Alberta the first Canadian jurisdiction to introduce an opt-in agency fee arrangement more common in U.S. labor law.
Canadian labor laws have, with one historical exception noted below, never recognized the concept of the agency fee. Employees covered by a collective agreement with a union dues check-off clause are required to pay the full dues (subject to a religious objection), and there is no right to opt-out of the share of dues going towards non-collective bargaining activities. The one exception was in Manitoba for a brief period in the late 1990s, when legislation permitted employees to opt-out of the share of union dues put towards political activities and to direct that money to a charity instead. There has never been “right to work” legislation in Canada, which would prohibit union dues check-off clauses altogether.
As OnLabor readers know, last year the U.S. labor law landscape shifted dramatically. In Janus v. AFSCME, a deeply divided U.S. Supreme Court ruled that even agency fees violated public sector workers’ freedom of speech. Janus effectively rendered the entire U.S. public sector “right to work,” and it requires that unionized employees opt into paying union dues. The Janus reasoning applies only to public sector workers, but as Ben has noted, powerful anti-union forces have now shifted their focus to banning mandatory union dues clauses across the entire U.S. economy.
The UCP Proposal to Introduce Opt-In Union Dues in Alberta
The UCP proposal draws inspiration from these developments south of the border. Its purpose is to reduce union revenues and political engagement. The UCP has not (yet) proposed a ‘right to work’ model; collective agreements will still be permitted to include mandatory union dues clauses. However, the UCP proposal takes a cautious step in the direction of right to work. If enacted, it would be the first in Canada to introduce a U.S. style agency fee arrangement whereby employees would need to actively opt into paying a share of union dues.
Conservative parties in Canada have in the past required unions to publicly report the proportion of their revenues spent on collective bargaining and non-collective bargaining related activities. These laws were perceived as possible precursors to a law precisely like the one the UCP is now proposing. The decision by the UCP to require an “opt in” rather than an “opt out” model is a direct nod to Janus that is intended to have the greatest negative impact on union resources, since people tend to opt into payments far less than they opt out of existing ones.
A wild card in Canada is the Charter of Rights and Freedoms and its guarantee of freedom of association, and a Supreme Court that has in recent years demonstrated greater respect for collective voice and union freedoms than its U.S. counterpart. In the landmark 1991 decision Lavigne v. OPSEU, the Court soundly rejected the argument that a worker’s freedom of expression is infringed when a portion of union dues is put towards activities with which he or she disagrees. Whether the UCP formula of “opt in” payment of the share of dues going towards “political parties and causes” would survive a Charter challenge is an intriguing question sure to engage the labor law community.
While no Canadian government yet has pursued the divisive path of right to work laws, some have considered it before backing off. The UCP has not yet announced an intention to go down that road. But by introducing a form of opt-in partial union dues, the UCP may be releasing the proverbial canary into the coal mine to test the political and legal environment for a broader subsequent shift towards more fundamental labor law reforms inspired by U.S. labor law. Canada is undergoing a shift to the right, with 6 of the 10 provinces presently under hard right governments, and the federal Conservatives poised to seize power from Justin Trudeau’s Liberals this fall. We may be at the precipice of an important moment in Canadian labor law. Conservative politicians in Canada are gazing at the sorry state of U.S. labor law and its dwindling labor movement. They like what they see.