Written by: Brian W. Burkett and Margaret E. Gavins, Heenan Blaikie LLP.
Since the 1960’s, organized labour in the United States has been steadily shrinking. A half-century ago, 30 per cent of U.S. workers were members of a union. By last year, that number had shriveled to 11.8 per cent. In comparison, Canada - with similar economic, social and political structures - has seen unionization rates remain relatively steady at approximately 30 per cent. Why have unions in Canada managed to hold their own compared with their U.S. counterparts? And will this trend continue in the face of declining unionization rates in Canada’s private sector?
Different Legal Frameworks
The diverging paths of Canadian and U.S. labour law over the past few decades help to explain the comparative strength of unions in Canada. While modern Canadian labour law owes its origins to the Wagner Act passed in the United States in 1935, since that time Canadian legislative developments have protected unionization and collective bargaining to a greater degree than in the United States.
Canadian procedures for winning certification rights are more favourable to unionization than the U.S. rules. The Canadian procedures offer access to quick votes or card-based certification, and restrict the employer’s ability to campaign against unionization.
Once a union is certified, Canadian law supports the new collective bargaining relationship by removing potential obstacles to the establishment of a first collective agreement. Labour laws across the country require an employer to include a dues check-off provision in a collective agreement at a union’s request. Further, if a strike occurs over a first collective agreement, collective bargaining statutes guarantee the employee’s right to return to the job within a specified period following the commencement of the strike.
Some jurisdictions go even further to support the establishment of a first collective agreement by making “first contract arbitration” available for unions who are unable to negotiate one. The concept was introduced in Canada in the 1980s to address perceived problems achieving first collective agreements. In response to a number of lengthy and sometimes violent first contract strikes, the Ontario government introduced a procedure for a neutral third party to set the terms of a first collective agreement. Seven provinces and the federal jurisdiction now have first contract arbitration procedures. In some Canadian jurisdictions, the procedure is automatic; in others, the union is required to meet a threshold, such as proving that the employer has refused to bargain or has taken an uncompromising position intended to frustrate negotiations.
Are Canadian Unions Set to Follow the U.S. Path?
While overall unionization rates in Canada have remained fairly steady at around 30 per cent, if private sector union density is considered separately the trend in Canada is arguably one of decline. Higher public sector unionization in Canada (71 per cent in the public sector, compared to just 16 per cent in the private sector) accounts for a good part of the differential rates between Canada and the United States. In both countries, traditional “blue-collar” sectors of the economy where unionization is greater, such as manufacturing, construction, and transportation, have not experienced the sort of growth in recent years that has occurred in the service sector—a sector in which establishing and sustaining collective bargaining rights has proven difficult.
The trend away from card-based certification toward mandatory votes is another factor. The Ontario experience shows that unions are less successful under a certification procedure that requires a vote. In 1995, Ontario moved from permitting card-based certification to requiring a vote in every case. In the ten year period prior to the introduction of the secret ballot vote in Ontario, certificates were granted in approximately 68.5 per cent of all applications. In the ten years following the introduction of the certification vote, unions’ success rate declined to 57.6 per cent. While card-based certification used to be the norm in Canada, six provinces out of ten now require a vote in certification applications.
Despite their common roots in the Wagner Act, Canadian and U.S. labour law have developed in different directions. Canadian labour law facilitates union certification and the achievement of a first collective agreement. However, while overall unionization rates in Canada have remained steady due in large part to high membership rates in the public sector, the recent decline in union representation in Canada’s private sector suggests that Canada could soon follow the U.S. path.
Heenan Blaikie LLP is the only Canadian member law firm of Ius Laboris (www.iuslaboris.com). Ius Laboris is a global alliance of 41 leading management law firms specializing in labour, employment, pension, health and welfare benefits, global mobility, and tax related legal issues.