Clean Slate for Worker Power, Through a Canadian Lens

David Doorey

Dr. David Doorey is an Associate Professor of Labor and Employment Law at York University in Toronto.

A new report from Harvard Law School’s Labor and Worklife Program entitled Clean Slate for Worker Power lays out a series of ambitious reforms that would help guide U.S. labor law into the 21st century with worker empowerment as a driving policy objective.  Four themes emerge from the Report, which follows a two-year research period involving dozens of academics, organizations, and activists: inclusion; graduated freedom of association; sectoral bargaining; and worker empowerment.

  1. Inclusion means ensuring that all workers have access to collective bargaining, including dependent and independent contractors.
  2. Graduated freedom of association rejects the Wagner Model’s binary choice of either full-fledged majority, exclusive trade unionism or nothing at all, and proposes a menu of collective voice options ranging from thin (workplace monitors and disciplinary representation), to thicker (works councils when at least three workers request one; minority union collective bargaining when no one union represents a majority), to full-fledged Wagner style majority bargaining.
  3. Sectoral bargaining involves collective bargaining that takes place at the sector or industry level rather than the usual enterprise level and offers the best hope for extending collective bargaining and voice to the millions of workers who have never benefitted from the Wagner Model.
  4. Worker empowerment is at the centre of a bundle of proposals in the Report to empower workers to participate in workplace and political democracy (a “just cause” termination standard, stronger unfair labor practice remedies and organizing rights, a beefed up right to strike, expanded collective bargaining scope, worker representation on corporate boards, stronger voting rights, and corporate fiduciary duties that include worker interests).

I was fortunate to play a very small role in Clean Slate project as the Canadian representative on the world-spanning International Advisory Committee. There is much in the Clean Slate report that rings familiar to Canadians.

Many of the proposals are already law in parts of Canada or have been in the past. For example, card-check based union certification was the prevailing model in Canada for decades and is still in effect in some form in several Canadian jurisdictions. We’ve had occasional laws granting unions access to employee lists and contact information to facilitate organizing, although these laws are the exception rather than the norm. In some provinces, “remedial” certification of a union can be ordered as a remedy (see e.g. Ontario Labor Relations Act, s. 11(2)(c)) when employers commit unfair labor practices during organizing campaigns. Canadian collective bargaining law does not distinguish between mandatory and permissive subjects of bargaining and so the parties have a broader duty to bargain over business decisions that will impact workers. Canadian employers cannot permanently replace a worker engaged in a lawful strike, and there is no restriction on intermittent or work-to-rule strikes, although we have greater restrictions on when strikes can take place. Some jurisdictions already have laws requiring employers to have “just cause” for termination.

Canadian common law and labor legislation has also long recognized a category of worker called a “dependent contractor” who is treated as an employee for some purposes, including the right to unionize. The tests developed to decide if a worker is a dependent contractor in Canada are similar to those now codified in California’s AB5, and many workers in relationships similar to modern “gig” workers have over the years be found to be employees by our labor boards. Cases before the Ontario Labor Relations Board now will decide if Uber and Foodora drivers meet the standard and can therefore unionize.

These are a few some examples of how the Clean Slate agenda borrows much from Canadian law, and the changes would no doubt help improve working conditions for U.S. workers considerably.  Other proposals in the Report repeat long-standing concerns in Canada.For example, our labor laws also exclude, explicitly or in practice, large swaths of Canada’s most vulnerable workers, including agricultural and domestic workers. These exclusions are now constitutionally suspect since our Supreme Court struck down the agricultural exclusion as inconsistent with freedom of association in our Charter of Rights and Freedoms, but many remain on the books.

For reasons I have explained before, and despite a more favorable legal climate, Canada is nevertheless confronting many of the same labor challenges that the Clean Slate project seeks to redress. While overall union density (29 percent) in Canada remains much higher than in the U.S., this is largely due to our heavily unionized public sector (73 percent). In the private sector, union density sits just below 15 percent, down from about 30 percent in 1980, and is projecting a downward trend. While the need to look beyond the Wagner Model at different models of worker representation still feels less urgent in Canada, these conversations are well underway here too.

This is why the Clean Slate’s proposals for graduated freedom of association and sectoral bargaining are of critical importance and interest here in Canada. Similar ideas have been debated in Canada for years. Sectoral bargaining for domestic workers and other historically under-represented workers has been considered in Canadian academic and policy circles since at least the 1990s and even exists in varied form in small pockets scattered across the country, including parts of the construction and arts sectors. Quebec has had a system of decrees since the 1930s which extends collective agreements to entire sectors, although in recent years the model has fallen out of favour. However, with a few exceptions, sectoral bargaining has been a subject of academic debate rather than substantive policy in Canada.

The ideas of mandatory works councils and minority collective bargaining have been advocated for decades in some Canadian quarters, especially by Professor Roy Adams, who has been screaming into the wind since the 1980s. Various Canadian academics have advocated models of “graduated” freedom of association to complement the Wagner Model (myself included, and Prof. Mark Thompson). Forty years ago, Professor Bernie Adell proposed a model of minority collective bargaining once a union reaches the 25 percent threshold and there is no majority union.  However, these policies also have not been taken up by our governments. A recent review of Ontario labor law rejected sectoral bargaining as “too large a step” to introduce in sectors without historical collective bargaining experience.

The Clean Slate for Worker Power Report draws together many disparate ideas into a coherent roadmap for moving the conversation forward at a crucial crossroads in the development of labor law in the two countries. The timely Report should jumpstart a much-needed conversation about the direction of that development on both sides of the border. Canadians should pay close attention to this conversation. History has demonstrated that our two nations’ labor law systems share a close symbiotic relationship. Any post-Wagner Model of collective bargaining and labor law that emerges in the U.S. will influence the trajectory of Canadian labor law, as it did in the 1940s.  Similarly, there may be lessons to learn in the U.S. from Canadian experience as the conversation proceeds.

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