Learning Objectives

Question 1

What are the essential features of capitalism?

Answer 1

Capitalists (or simply “capital”) privately hold most of the non-human means of production (i.e., land, materials, equipment, money—collectively “capital”).

The production of these necessities is organized by capitalists with the exclusive goal of making a profit through their distribution (i.e., sale) through a market mechanism

Capitalism is an economic system based on the private ownership of the means of production and their operation for profit. Central characteristics of capitalism include capital accumulation, competitive markets, a price system, private property and the recognition of property rights, voluntary exchange and wage labor.

Question 2

Describe how the features of capitalism affect the dynamics of the employment relationship

Answer 2

The non-owning majority (“labour”) must trade its time and effort for wages in order to purchase the necessities of life, such as food, clothing, and shelter.

Labour must subordinate itself to capital by entering into an employment relationship or face starvation. This material inequity means that capitalism is a structure of power. It allows capital to compel labour to do things that labour might not otherwise want to do in order to avoid starvation. Capital uses this power to advance its interest in making a profit.

The converging and conflicting interests of labour and capital colour the dynamics of employment relationships. Both labour and capital have an interest in the continued financial viability of work organizations. Beyond this high-level agreement, however, their interests diverge. Since capitalists seek to maximize their profits, they consequently adopt such strategies as minimizing labour costs through capital substitution, outsourcing work, and increasing the pace of work. Workers, on the other hand, seek to maximize the return they receive on their time (through higher wages) and protect their health and safety (by controlling the pace and organization of work). The result is conflict about wage rates and the wage-effort bargain.

Question 3

Describe the role that law has in society.

Answer 3

An important role of the state is to regulate social relations—but the state is not the only regulator of social relations. Cultural and religious beliefs also guide what behaviours are deemed normal and acceptable. The state, however, is the only regulator that obtains its legitimacy through the democratic process; it is also the only regulator imbued with the right to exercise force in managing social relations. Thus various legislatures make and pass laws and employ bureaucracies to administer and enforce them.

These laws mostly maintain political and economic stability. Since the political and economic structure of a society typically advantages those who are already powerful, maintaining stability is largely about maintaining the existing distribution of power and wealth—and the systems that support it. In this way, the state is not a neutral actor. Maintaining the existing distribution of power is hardly the result of chance or “the will of the people”

Question 4

What is Natural Law

Answer 4

Natural Law is believed to the a rational foundation of moral judgement.

The central tenet of natural law theory is that a certain order exists in nature that provides norms for human conduct. These unwritten laws form a body of moral principles that are common to all humans. One way to think about natural law is to consider it as a test we can use to judge the actions of others and of ourselves.

Question 5

Discuss how natural law theory helps in the analysis of human rights.

Answer 5

• Protected ground of family status. The idea that two people create a child, and they then become the parents and natural caregivers for that child. It is something that natural law theory would explain as natural law because it is inherent within human beings, and any human-made law would not be required for humans to feel as though they need to act as the caregiver of their child. As the need is inherent, then discrimination based on family status is not allowed
• Protected ground of Marriage status. People long for companionship and have for since the beginning of recorded history. Thus it is inherent and natural thus it should be and is protected
• Protected ground of Religion. People always have their own beliefs thus making it inherent

Question 6

Define economic globalization

Answer 6

Economic globalization refers to the widespread international movement of goods, capital, services, technology and information.

Question 7

What evidence supports economic globalizaiton

Answer 7

• increased global sourcing of raw materials and supplies
• a tendency to locate production facilities in the nations with the fewest regulations
• an expansion of trade liberalization internationally.
• Proponents of a “strong” globalization thesis argue that competition among nations for investment dramatically curtails the sovereignty of individual nation-states by compelling states to do the following: (1) lower tax rates perpetually on capital, (2) deregulate financial markets and trade, (3) privatize formerly public spheres of activity, (4) retrench the welfare state, and (5) promote labour market
• The expansion of the service sector and the decline of the manufacturing sector have accelerated. While some services can be globally sourced, much of the service sector cannot be. Manufacturing, however, has been exposed to myriad competitive threats, such as international producers with open access to local markets, the willingness of employers to detach and outsource components of the production process to other sites, and an increased plausibility of plant closure or relocation to more favourable jurisdictions.

Question 8

Identify economic globalization impact on public policy

Answer 8

Federal and provincial governments in Canada have accepted the hegemonic discourse of globalization, and have made concerted efforts to promote neo-liberal policies. This includes reducing income support programs, creating flexible labour markets, weakening employment laws and union recognition legislation, expanding the labour supply to increase wage competition, and placing increasing restrictions on public-sector unions and wage bargaining.

Question 9

Provide an explanation as to why some workers are interested in reframing worker rights as human rights.

Answer 9

As traditional forms of worker resistance to the demands of capital have proven less successful (i.e., unionization and collective bargaining), some activists have sought to reframe these worker rights as human rights. This strategy has the potential to affect the balance of power in two ways.

1. It draws on the normative power of “human rights” to increase the moral power of workers. Rather than a group of workers saying “We want the right to strike,” workers can say “We want to exercise our freedom to associate” (which includes taking part in a work stoppage).
2. It changes the venue where labour and capital advance their agendas—from the legislature and workplace to the courts. This change may reduce the ability of capital to exercise its economic and political power to achieve a favourable outcome.

Question 10

Identify the three categories of human rights

Answer 10

Civil
Political
Social

Question 11

Civil Rights

Answer 11

The rights to liberty, property, security, and justice

Liberty is that of the individual without regard to the social
Property as private property
Security as state protection of individual rights, private possessions, and the person
Justice as the vindication of the outcome of the unequal property relations

The rights to freedom of speech, assembly, movement and faith are similarly cast as civil rights within a framework of private property

Civil rights are the rights of the individuals as the personification of private property

Question 12

Political rights

Answer 12

Define the relation of the individual in civil society to the state, the embodiment of the framework of the prevailing property relations; they are the “rights of the citizen”. In general they are limited to the right to vote, to be elected, to reform or amend the constitution if elected, and “to petition the government” all of which presume periodic elections

Question 13

Social rights

Answer 13

Typically include a range of subsidized health services, state-financed primary and secondary education, social security mechanisms (such as disability and old age pensions, and unemployment and occupational accident insurance), employment standards, and trade unions, including the right to strike.

Question 14

Discuss how the types of human rights support or contradict one another

Civil and Social Rights
(Contradict)

Answer 14

• Civil rights are in principle exclusive while social rights are inclusive. Civil rights imply individual rights to the social product (means of production are capital goods and assets that require organized collective labour effort), while social rights imply generalized rights to the social product
• Civil rights reflect the premises of the system; they constitute a guide to making law and to “justice” and to the administration of government. The role of the state is to legislate, maintain, and enforce property relations of civil society; and the rights are the measure or standard against which activities of the capitalist state are assessed
• Social rights reflect the contradictions within the system. They are attempts to address vagaries in the ability of the market to reproduce in the system
• Goods and services fall under private property and are accessible via the marketplace but are restricted by price mechanisms. Access to those goods and services can be minimalized or even denied by the intrinsic inequalities of the system. Social rights attempt to reduce this shortcoming in the market; posed as rights, the contradict the normal outcome of the exercise of civil rights

Question 15

Explain the connection between human rights and natural law theory

Answer 15

Natural law theory has long discussed various “human rights.” These human rights reflect the belief that there is a certain order in nature that provides norms for human conduct. As a result, all humans have certain innate rights—rights that are distinct from legislated rights.

These unwritten laws form a body of moral principles that are common to all humans and can be used to analyze, critique, and reform legislated law (which is sometimes called “positive law”). These natural law rights may be deeper (and possibly narrower) than those that form the focus of Teeple’s analysis. And, thus, Teeple’s assertion that human rights have emerged to codify, legitimize, and manage capitalism may require some qualification. Perhaps it is how human rights have been civilly codified that renders them responsive to the imperatives of capitalism.

Universal conceptions argue human rights are inalienable, self-evident and applicable to all human beings (Donnelly, 2003, 10). These arguments are often linked to origins in Western philosophy and natural law

Question 16

Discuss the forms of equality and inequality that might be created or sustained (or both) by human rights documents.

UDHR
Equality

Answer 16

• All human beings are born free and equal in dignity and rights.
• Everyone is entitled to all the rights and freedoms set forth in this Declaration
• Everyone has the right to life, liberty and security of person.
• No slavery is allowed
• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Everyone has the right to recognition everywhere as a person before the law.
• All are equal before the law and are entitled without any discrimination to equal protection of the law
• No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation
• Everyone has the right to freedom of thought, conscience and religion
• Everyone has the right to freedom of opinion and expression
• Freedom of association

Question 17

Assertion that human rights are universal

Answer 17

the claim that these rights are accorded to all humans everywhere

Question 18

Assertion that human rights are inherent

Answer 18

Human rights are timeless, immanent, and independent of external causes

Question 19

Assertion that human rights are inalienable

Answer 19

They cannot be surrendered, or taken away - their ownership” cannot be transferred to another

Question 20

Assertion that human rights are indivisible

Answer 20

each category of right (civil, political, and social) cannot be ranked above another or promoted above others, or violate the interests of

Question 21

State the arguments FOR the assertion that human rights are universal, inherent, inalienable, and indivisible.

Answer 21

This would be the case in an ideal world and something that is being worked towards, however the assertion that human rights are universal, inherent, inalienable, and indivisible is simply not true

Question 22

State the arguments AGAINST the assertion that human rights are universal

Answer 22

The universality of human rights does not extend to children, because in the world of human rights children are not “persons” in law.

Women the world over are also denied in law or in practice the full range of human rights.

the claim of universality is only defensible if one is willing to omit children and other who are not legally “persons” and to dismiss social character of humanity and other notions of right belonging to other modes of production

Question 23

State the arguments AGAINST the assertion that human rights are inherent

Answer 23

These rights did not exist long ago.

Civil rights were initially called “natural” or “eternal” to sanctify the demands of a capitalist class in the face of feudal privilege and obligations, as a means of proclaiming the principle of a new age. The history of civil rights makes it clear that they are relative to a particular mode of production and to the changing class struggles that characterize the evolution of that mode

The gradual extension of political rights through the reduction of property qualifications brought into being modern political rights, but this development is the consequence of decades of struggle; political rights in themselves have nothing to do with anything natural or inherent.

Social rights are also the result of struggle over a long period of time. Additionally, social rights arise as a counter to prevailing corporate private rights, as demands for alleviation of the worst effects of capitalism or as a product of “market failure” or incapacity of some sort.

Question 24

State the arguments AGAINST the assertion that human rights are inalienable

Answer 24

Human rights are continually alienated in all kinds of ways, both legal and illegal. For the most part they are alienated by mainstream institutions and structures that represent or embody prevailing corporate rights

Question 25

State the arguments AGAINST the assertion that human rights are indivisible

Answer 25

The competent parts of human rights are continually being divided

Question 26

What workplace-related rights does your jurisdiction’s human rights legislation protect?

Answer 26

In Ontario you have the right:

to be treated fairly at work
to work in a safe and healthy workplace
to be trained to deal with workplace hazards, and
to join a trade union.

It’s the law. Those, and other rights, are protected by the Employment Standards Act (ESA), the Pay Equity Act (PEA), the Occupational Health and Safety Act (OHSA) and the Labour Relations Act (LRA).

Question 27

What workplace-related rights does your jurisdiction’s human rights legislation protect?
Workplace fairness

Answer 27

Ontario’s Employment Standards Act sets minimum standards for things like pay, work hours and time off. Most workplaces in Ontario must follow this law. Your rights are the same whether you work full-time or part-time.

Question 28

What workplace-related rights does your jurisdiction’s human rights legislation protect?
Your basic rights under the Employment Standard Acts

Answer 28

1. Getting paid - You should get a regular pay day and an accompanying wage statement (“pay stub”) that is clear
2. Overtime - Most employees must be paid overtime pay after 44 hours of work each week. The overtime rate must be at least 1½ times the regular rate of pay.
3. Public holidays - Most employees are entitled to take these days off work and be paid public holiday pay. Alternatively, they can agree in writing to work on the holiday and they will be paid:
   public holiday pay plus premium pay for the hours worked on the public holiday, or
   their regular rate for hours worked on the holiday, plus they will receive another day off (called a “substitute” holiday) with public holiday pay.
4. Vacation time and pay
5. Temporary help agency work - Temporary help agency employees generally have the same rights as other employees under the ESA.
6. Deductions from wages - Only three types of deductions can be made from your wages: statutory (e.g., taxes), court-ordered and those authorized by you in writing.
7. Special rules - Some jobs have special standards or exemptions. See our Special Rule Tool to learn more.
8. The Employment Standards poster - Your employer should have the Employment Standards poster displayed where you can read about some of your ESA rights.
9. When a job ends- In most cases, after working continuously for three months, you must receive advance notice in writing and/or termination pay if your employer ends your employment.

Question 29

What workplace-related rights does your jurisdiction’s human rights legislation protect?
The basics of Pay Equity

Answer 29

The right to equal pay for work of equal value - In Ontario, both men and women have the right to receive equal pay for doing work that may be very different in nature, but is of equal value. That right is protected by the Pay Equity Act.

The right to equal pay for equal work - The Employment Standards Act also has provisions that ensure women and men receive equal pay for performing substantially the same job. That means work that requires the same skill, effort, responsibility, and is done under similar working conditions in the same establishment

Question 30

What workplace-related rights does your jurisdiction’s human rights legislation protect?
The basics of the Labour Relations Act

Answer 30

Under Ontario’s Labour relations Act, you have the right to join a trade union and participate in legal union activities.
It’s against the law for an employer to fire you or discriminate against you for:
- joining a union
- your past association with a bargaining agent, and exercising any other rights under the LRA.
- It’s also against the law for a union or employer to intimidate or coerce you to join or not join a union

Question 31

What workplace-related rights does your jurisdiction’s human rights legislation protect?
Safe and healthy workplace

Answer 31

The Occupational Health and Safety Act (OHSA) sets out the rights and duties of workers, supervisors and employers in keeping workplaces safe and healthy in provincially regulated workplaces.

Question 32

What workplace-related rights does your jurisdiction’s human rights legislation protect?
Your basics rights under the OHSA

Answer 32

The right to know - You have the right to know about hazards in your workplace and to be trained how to protect yourself from harm.
The right to refuse - You have the right to refuse unsafe work, including situations where you believe you’re in danger of workplace violence.
The right to participate - You also have the right to help identify and resolve workplace health and safety concerns.

Question 33

How does the Charter affect legislation and government action?

Answer 33

Human rights legislation must be consistent with the Charter. Where human rights legislation is inconsistent with the Charter, the legislation (or decisions based on it) can be struck down by judicial review. When legislatures enact human rights legislation, the rights they protect reflect a politically palatable notion of what those rights should constitute. This may well run afoul of the Charter.

The Charter binds the actions of governments and not private actors.

The Charter applies to the executive and legislative branches of the federal and provincial governments

“Parliament” and the “provincial legislatures” are expressly named in section 32(1) and therefore the Charter applies to the legislation they enact

Note however, that the privileges of Parliament and the legislatures that are necessary for their proper functioning as legislative assemblies are immune from Charter scrutiny since they themselves are constitutionally entrenched

Question 34

How does the Charter affect legislation and government action?

Answer 34

Human rights legislation must be consistent with the Charter. Where human rights legislation is inconsistent with the Charter, the legislation (or decisions based on it) can be struck down by judicial review. When legislatures enact human rights legislation, the rights they protect reflect a politically palatable notion of what those rights should constitute. This may well run afoul of the Charter.

While all courts can hear arguments that government action is contrary to the Charter, such matters often end up on appeal before the Supreme Court of Canada (SCC). When examining laws passed by a federal or provincial legislature, or governmental actions or regulations, the courts must interpret Charter rights and freedoms in order apply them, because these rights and freedoms are written in broad terms. Interpretation is guided by language found within the Charter itself, such as the stipulation in section 1 that Charter rights and freedoms are guaranteed “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Charter binds the actions of governments and not private actors.

The Charter applies to the executive and legislative branches of the federal and provincial governments

“Parliament” and the “provincial legislatures” are expressly named in section 32(1) and therefore the Charter applies to the legislation they enact

Note however, that the privileges of Parliament and the legislatures that are necessary for their proper functioning as legislative assemblies are immune from Charter scrutiny since they themselves are constitutionally entrenched

Question 35

Identify how the courts have extended the scope of the human rights protected by the Charter in three decisions.

Answer 35

Vriend v. Alberta [1998] 1 S.C.R. 493

British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union [1999] 3 S.C.R. 3.

Canada (Attorney General) v. Johnstone, 2014 FCA 110.

Question 36

Describe why the “legalization” of labour relations is often described in negative terms by trade unionists.

Answer 36

The legal system offers less opportunity than direct action to make significant changes, in part because of the basic dynamics of the judicial system. An important purpose of law is to regulate social relations. A part of this function entails maintaining the status quo under the belief that legal predictability has a positive outcome. This is reflected in the judicial doctrine of stare decesis, where courts use precedent to drive interpretation in order to create a degree of predictability.

Question 37

Explain what majoritarian exclusivity is?

Answer 37

All Canadian labour laws require that members of a bargaining unit decide (usually by majority vote) on whether to be represented by a single union and the result of the vote is binding on all members of the unit. Such an arrangement is referred to as majoritarian (i.e., a group choice decides matters for everyone) and exclusive (i.e., one union represents everyone).

Question 38

What relationship exists between capitalism and human rights?

Answer 38

• social rights are an important way in which workers have mitigated the worst excesses of capitalism
• civilly instituted human rights legitimize capitalist propertied relations, which are the very relationships that give rise to many of the problems workers seek to mitigate by relying (in part) on human rights.
• Civil rights codified a set of relations among individuals based on the emerging capitalist mode of production. Civil rights required by a capitalist mode of production are embedded in the constitutional documents of nations and are thus protected by the state.
• greater wealth, capital tends to have more influence over public policy than labour. (Political)
• social rights were an attempt to ameliorate the negative effects of capitalism

Question 39

Assertions of human rights

Answer 39

Universal
Inherent
Indivisible
Inalienable

Question 40

Universal Declaration of Human Rights (UDHR)

Answer 40

It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages. The UDHR is widely recognized as having inspired and paved the way for, the adoption of more than seventy human rights treaties, applied today on a permanent basis at global and regional levels (all containing references to it in their preambles).

Question 41

Discuss the forms of equality and inequality that might be created or sustained (or both) by human rights documents.

UDHR
Inequality

Answer 41

• Universal Declaration of Human Rights (UDHR) does not apply to children as it only applies to those over the age of majority.
• Women as viewed as lesser people in some religions which contradicts the equality of all people and the freedom of religion

Question 42

Discuss how the types of human rights support contradict one another

Political and Civil (Corporate)
(Contradict)

Answer 42

• Contradiction exists between the rights of the individual to vote, stand for election, and petition the government and the private property relations that form the basis of the constitution.
• The prevailing property relations in a liberal democracy - those that inform the rule of law - are most importantly civil rights; but the majority of the population, as employees, are not able to exercise, as civil rights, their essential interests regarding the disposition or product of their labour; these are rights that the corporation has purchased in the employment contract.
• Unless there are political parties that advocate an end to corporate private property, this state of affairs means that the majority must always vote or stand for a party that necessarily acts against its own interests or at best provides concessions of those interests
• The expansion of corporate civil rights contradicts the assistance of political rights. The more that the public sector is placed into the private section, the more that these public goods and services are removed from the possibility of political control.

Question 43

Discuss how the types of human rights support contradict one another

Political and Civil
(Support)

Answer 43

• In most of the industrial nations, the working class had won political rights belonging to a constitution grounded in civil rights in the first half of the twentieth century
• The rights to elect and to be elected, are rights to participate in a government that must in principle represent the interests of the pre-eminent form of private property; they are rights within a framework of privilege private corporate property

Question 44

Discuss how the types of human rights support contradict one another

Social and Civil
(Support)

Answer 44

• Social rights arose with the coming of the working class; they reflect the exercise of the prevailing corporate private rights (civil rights), which usurps land and other means of production from individual proprietors
• The receiving of social assistance has often been conditional on the loss of the ability to exercise certain civil and political rights. If to be a citizen is to be defined by private property rights, at the very least with regard to labour-power, then to be unemployed or unemployable can imply the forfeiture of “personhood” and therefore dignity and the means to exercise certain rights.

Question 45

Explain what majoritarian exclusivity is

Answer 45

a fundamental principle of the Wagner model. Majoritarianism/exclusivity means that the association supported by the majority of employees in the bargaining unit has the exclusive right to bargain on behalf of all employees in the unit.

Question 46

How does majoritarian exclusivity operates in your jurisdiction

Answer 46

Workers contact the union and meet with a union organizer.
Workers sign cards applying for membership in the union, and authorizing the union to represent them in negotiations with their employer.
If at least 40 per cent of the workers sign membership cards, the Ontario Labour Relations Board (OLRB) will hold a vote to see if workers want a union.
The OLRB holds a secret ballot vote. Anyone who is in the bargaining unit the union applied to represent can vote. If the majority of workers who cast ballots vote to unionize, the union is certified.
The union will serve notice to your employer to begin bargaining your first contract.

Question 47

The Wagner model

Answer 47

Under the Wagner Act model, there exist two separate yet equally important principles: exclusivity and majoritarianism.

• Exclusivity refers to the fact that a single trade union exists to represent the entire bargaining unit, and that all members of the bargaining unit are covered by this single union and the collective agreement that it negotiates. In other words, there are no competing unions for workers to pick and choose from, and all workers in a bargaining unit are represented by a single union.
• This bargaining unit is certified only if a majority of workers show support for the union, generally through a vote in a secret-ballot election

Question 48

How might minority unionism operate alongside the Wagner model?

Answer 48

the Graduated Freedom of Association (GFA) model

The GFA model consists of a legal system that instantiates both the “thin” and “thick” versions of freedom of association described in this section. In terms of practical design, the new thinner version could be introduced as a set of amendments to existing employment standards legislation, as a stand-alone statute similar in form to the AEPA, or as a new distinct part added to existing Wagner-style collective bargaining legislation.

The GFA model would give all workers the realistic ability to exercise at least the minimum “thin” core rights and freedoms guaranteed by section 2(d). The “thicker” bundle of legal rights and responsibilities in a Wagner-style statute like the OLRA would continue to apply to workplaces where employees were represented by a majority union, and would include a right to strike and a duty to bargain in good faith

Question 49

The Graduated Freedom of Association (GFA) model

Answer 49

• workers not represented by a majority union would have a legal right to associate and to make collective representations to their employers through vehicles other than majority trade unions, and their employers would be required to engage in “meaningful dialogue” about those representations.
• freedom of association operates on a continuum from thinner rights (the freedom to form, join and belong to an association of one’s choosing) to thicker rights (the freedom to strike and the right to collective bargaining in good faith)
• Any individual employee could be governed by the thin or the thick versions of association, or neither–but not both at once.
• GFA model that would extend rights similar to those found in the AEPA (Agricultural Employees Protection Act made in response to Dumore v Ontario) to all workers alongside the thicker Wagner model of collective bargaining. This thinner model would only marginally alter the balance of power in employment relations
• The best argument in favour of the GFA model from the perspective of worker advocates is that it offers one more tool in a larger struggle to inject worker voice into the workplace without formalized collective bargaining, and does so in a way that protects against reprisals for associational behaviour.
• Creative worker advocates might be able to use these thinner rights as part of a larger strategy of worker representation that includes providing valuable members-only services as a way to attract supporters.

Question 50

What are the arguments for and against minority unionism in Canada?

for minority unionism

Answer 50

• reduce the incentive for the employer to hire consultants
• much of the world minority unionism is the norm
• Minority unions will lead to majority unions
• whatever majority unions do result will be
  stronger

Question 51

What are the arguments for and against minority unionism in Canada?

for minority unionism
reduce the incentive for the employer to hire consultants

Answer 51

• some proponents are overly optimistic about the possibility that minority unionism holds, claiming that “it would reduce the incentive for the employer to hire consultants to keep the union out”
• It might reduce the incentive, but this is unclear; if minority unionism can be harnessed as the gateway to majority status and it virtually guarantees certification, both of which many of its proponents contend, employers would seem to have an even greater incentive to fight minority unions
• However, employers might also encounter greater difficulty since the majority bar does not need to be reached for the union(s) to establish representational
  rights. Much of this is theoretical at this point. It is true that in much of the world minority unionism is the norm

Question 52

What are the arguments for and against minority unionism in Canada?

for minority unionism
much of the world minority unionism is the norm

Answer 52

• It is true that in much of the world minority unionism is the norm.
• However, it is also the case that most such places have very different labor relations and political environments than those found in Canada
  and the United States
• For instance, the work council system in Germany legally establishes a form of collective representation in virtually all workplaces and is distinct from (although there is a strong overlap with) unions.
• In much of Europe, bargaining is highly centralized and is done at the industry level rather than the workplace level that is the norm in North America.
• Such differences are relevant to the potential for
  the success of minority unionism. One thing does seem fair to say, however, and that is that even minority collective representation is better than no collective representation. But minority unions are only beneficial to labor if they do not, on the whole, hamper the ability of workers to achieve the stronger bargaining position that is presumed to exist in majority unions

Question 53

What are the arguments for and against minority unionism in Canada?

for minority unionism
Minority unions will lead to majority unions

Answer 53

• it is the hope among most proponents of minority unionism that minority unions will lead to majority unions because workers will see some value in them, even if that value is less than might exist in a majority union

Question 54

What are the arguments for and against minority unionism in Canada?

against minority unionism

Answer 54

• that minority unionism could lead to even
  weaker bargaining relationships
• yet to be fully examined
• it could deal a significant blow to organized labor
• Unions will be forced to compete with one another and will therefore have fewer resources

Question 55

What are the arguments for and against minority unionism in Canada?

for minority unionism
whatever majority unions do the result will be
stronger

Answer 55

only those who genuinely want to be members will be. In other words, a union that once was certified because it enjoyed majority support—whether 51 or 91 percent—but which now is supported only by a strong minority—say 35 percent and does not get decertified because no one has the time or inclination to bother going through that process—is not obviously preferable to a minority union that enjoys support from 49 percent of the workforce but 100 percent of its members

Question 56

What is the Charter basis upon which proponents of minority unionism base their claims?

Answer 56

-The implicit view that the Charter protects rights that all Canadians have in view of their status as Canadians gives rise to the possibility of extending Charter protection by invoking a positive duty on government to pen legislation forbidding private interference with these rights, as was the case in Dunmore, under certain narrowly construed circumstances
- The right to collective bargaining, then, exists even without the standard statutory formulations found within most Canadian labor relations regimes—including majoritarianism and exclusivity.
- If this is held to be the case, then minority bargaining might over time reduce the so-called representation gap—the gap between those who want collective
voice at work and those who can get it—by increasing the incidence of collective bargaining.
- At the very least, it would arguably approach the more robust protection presently offered to non-unionized employees found within section 7 of the National Labor Relations Act in the United States.

Question 57

The Graduated Freedom of Association (GFA) model

Thin

Answer 57

new thinner version of collective voice alongside the existing Wagner-style statutes that govern majority trade union collective bargaining

The thin model, which would have some parallels to the provisions of Ontario’s much-criticized Agricultural Employees Protection Act, would enable all workers to exercise at least the minimum bundle of rights and freedoms protected by the Charter without having to opt for a majority union as bargaining agent. Graduated Freedom of Association would impose few new substantive obligations on employers, but would help to address the large representation gap for employees who want a collective voice at work but cannot realistically acquire it under today’s labour relations statutes.

An employee association with thinner rights would be supplanted by a successfully certified trade union under the OLRA, in much the same way as a non-union employee association now loses its right to represent its members once a union is certified under the OLRA

Question 58

The Graduated Freedom of Association (GFA) model

Thick

Answer 58

the “thicker” bundle of legal rights and responsibilities in a Wagner-style statute like the OLRA would continue to apply to workplaces where employees were represented by a majority union, and would include a right to strike and a duty to bargain in good faith.

Question 59

New Zealand Unionism

Answer 59

• New Zealand enacted a legal framework for unionization that is very different from the Wagner model that also allows for minority (and plural) unionism.
• registered unions that have at least two members in a workplace may commence collective bargaining with an employer
• unions typically seek to have a substantial membership base before commencing negotiations
• The scope of New Zealand bargaining units is subject to negotiations (rather than being determined by a labour board) and worker support is determined based upon membership in the union (rather than requiring a certification vote or other one-time expression of support)
• Two or more unions may operate in a single workplace
• There is no obligation on workers to join a trade union and many receive comparable wages and benefits because employers tend to standardize compensation, thereby creating a free-rider problem for unions
• some workplaces remain difficult to organize (e.g., small workplaces, workplaces with high turnover).
• trade union density in New Zealand (18.9% in 2014) is lower than in Canada (26.4%)
• This may reflect the free-rider effect, wherein many New Zealand employees can receive the benefits of union contracts without joining the union and paying dues.