Tories set to revoke labour law, workers’ rights

Government is attacking its own good labour legislation, and it makes no sense. Card-check certification is effective, democratic, and a basic right that must be protected.

Well, the rebound is over it seems. Frank Coleman doesn’t take office for another few weeks but already the governing Progressive Conservatives are slipping back into their implosion-era political blunders. It’s Blunderdale Redux; or perhaps more presciently, Cole-gate.

Either way, this time it’s Dan Crummell, Minister Responsible for the Labour Relations Agency, who’s point man on scandal. He introduced a truly bizarre U-turn on labour legislation, proposing some amendments to the (already recently amended) Labour Relations Act which, thanks to their majority, and barring any last-minute dose of enlightenment, will likely be passed in the near future. The amendments send two strong messages: first, that this provincial government is dangerously under the influence of corporate cronyism; second, that all its recent commitments to ‘open government’ and public accountability were hollow words.

Bad policy will lead to bad outcomes

The amendments serve one basic function: they make it harder to form a union. The basic approach to forming unions in North America, standardized in the post-World War II period, was that a union will be formed if a majority of workers in a workplace demand one. One of the methods of demanding a union, which has been used in various workplaces and jurisdictions since the 1930s, has been by signing cards. Under this method, if a majority of workers sign cards asking for a union, the union will automatically be recognized. It’s democracy, pure and simple. The purpose of signing cards—instead of scheduling a vote—is that there is a strong body of evidence demonstrating that many employers will intimidate their employees if they think they’re going to form a union. Threats, coercion, bribes from employers are all heftily documented in reams of labour relations research. Signing cards protects employees from their powerful employers. And it’s democratic: a strong majority of cards signed is the vote.

In some cases, there are a lot of cards, but it’s a questionable majority. In these exceptional cases, sometimes a second vote would be held, often supervised by government (sort of like a run-off vote). It’s an undesirable option because it does precisely what the card-signing was designed to avoid — it creates a situation where employers can draw on their hefty money and power to try to shape the outcomes and cajole or coerce workers into voting against the union.

When Canadian labour relations law developed in the post-World War II period, initially every province had an automatic card-check unionization process. It was the norm. And then business and employer organizations started pressuring governments to do away with them, and to make it tougher for workers to form a union. In this province, that happened in 1994. Since then, workers have had to go through a double hurdle to form a union: first sign cards, and then have a mandatory vote. Multiple reviews and consultations over the years recommended changing that. Most recently, there was a wide-ranging public consultation as part of a revision of the Labour Relations Act two years ago. As an outcome of that public consultation, the government implemented automatic card-check certification, bringing this province into line with many jurisdictions across North America (including Manitoba, New Brunswick, Prince Edward Island and Quebec). This was a good move — not only good labour policy, but it reflected democratic accountability in that it was the outcome of public consultations surrounding revision to the Act.

Big business immediately cried foul — they wanted their double hurdle back. They made bogus claims that workers were losing a democratic right to a vote. Nonsense. When a majority signs cards, that is a democratic process, and one that keeps workers safe from employers who might try to interfere with a vote or target them with other types of reprisal. So long as at least 65 per cent of workers sign cards—a strong majority—no divisive, costly, second vote is needed. This was a responsible, sensible policy.

But something must have happened in dark corners quite recently, because government has suddenly tossed aside the very good legislation it brought in following public consultation, and is hastily trying to do what the big business community has been pressuring them to do: get rid of automatic card-check certification. What secret power does the business community have that they can persuade government to toss aside the outcome of public, accountable consultation and suddenly rewrite labour legislation in a hasty, ad hoc and irresponsible way? It’s a question worth asking.

Why the amendments are bad

The amendments will make it harder to form a union and will likely increase tension and division within workplaces. This actually increases costs to employers, so it makes no sense for them to support it. Allowing employers the benefit of that extra vote—even when a clear majority of workers have signed cards—is inviting employers to wade in with all the tools of their insidious anti-union campaigns, dividing workers and pitting them against each other, creating tension in the workplace, and ultimately throwing the smooth functioning of the workplace into chaos. Stopping unions has turned into a multi-million dollar industry in North America, an industry geared purely toward depriving workers of their democratic rights.

And it is depriving them of their rights. Card-signing is a democratic process that protects employees from employer reprisals. When card-signing produces a majority, requiring a second vote is akin to saying, “What? The Liberals won the provincial election? Well, let’s have a second election just to make sure.”

To be honest, many good employers actually prefer there to be unions in the workplace. Unions help to stabilize workplaces and ensure the fair and equitable treatment of workers. Good (and often large-scale) employers know this, which is why they are rarely the ones opposing unions (even if they might fight them in bargaining and during strikes). It’s often the more immature and ideologically-driven smaller and local employers who get it into their heads that they need to stop unions. This is, presumably, what we’re seeing when it comes to the local employers supporting these poorly crafted amendments. Automatic card-check certification is supported by a wide range of experts, from this list of noted economists encouraging the US government to adopt it, to the New York Times.

The outcome, if the amendments are passed, will not help the provincial economy and workforce in any way. In fact, it will do the opposite — they will increase labour tension and strife, and they will only further exacerbate the sort of inequalities that we already see growing in communities across our province.

Employers can be trusted, right? Yeah, right.

Employer representatives often argue that there’s no need to worry since intimidating workers in a union vote is illegal. Well, there’s a lot of things that are illegal that are still gotten away with in our society because of poor enforcement or an inability to prove the nasty things that go on.

This 2005 study from the US provides a useful example of the scale of the problem when it comes to employer intimidation tactics. In this study of unionization campaigns 30 per cent of employers fired workers involved in the campaign; 49 per cent threatened to close or relocate businesses if workers voted to form a union; 51 per cent of employers offered bribes or special favours to their employees to vote against the union; 82 per cent of employers hired special consulting teams to coordinate their anti-union vote campaigns.

In virtually all the cases they studied, at the beginning of the ‘vote’ campaign the majority of workers wanted a union (often with over 80 per cent support). But by the time the vote rolled around, only 31 per cent of the union votes passed. Holding workplace votes is not about democracy, it’s about giving the employer the time and space to organize and intimidate workers away from supporting the union.

And this study by Queen’s University law faculty demonstrates that switching “from a card-check to a mandatory vote procedure encourages unlawful employer conduct, enhances the effectiveness of union avoidance activities, and deters employee participation in the unionization decision.” In the cases studied, switching from card-check to mandatory vote resulted in fewer union applications, fewer successful certifications and fewer successful votes. No wonder employers are desperately fighting for this: it’s not democracy, it’s deterrence.

U-turn on the U-turn

More broadly, however, passing the amendments will fly in the face of every public statement this government has made in recent months about a renewed commitment to openness, accountability, and transparency. The existing legislation was the product of a public review, thorough research, and stakeholder engagement. These new amendments, coming out of nowhere, with no consultation whatsoever, suggest a bewildering return to the recent era when ideologically-driven legislation came out of nowhere and ultimately drove the premier out of office. What sparked these amendments is anyone’s guess (and some of us guess more conspiratorially than others). But one thing is clear: if the provincial government wants to maintain its recently regained—and very delicately held—public trust, it ought to scuttle these amendments and pretend this whole embarrassing moment never happened.

And then there’s the fact that the provincial Liberals have so far voted in favour of this too. What’s that about? Have they lost the nerve to challenge the PCs? Or have they been taken in by the rich boss propaganda too? Do they realize their support for the amendments undermines the province’s best interests? It’s quite telling that the one thing the Liberals are willing to connive with the PCs on is undermining the rights of this province’s workers.

The irony hypocrisy of a law requiring unions to undergo a double vote, being sanctimoniously passed by a government whose leader skipped along into the premier’s office without undergoing a single vote, is truly mind-boggling. It scores a near 10 on the Dunderscale. It’s too early for us to be having a Cole-gate; he’s not even in the premier’s chair yet. Let’s get rid of these amendments and let him keep his pearly-whites a little longer.

Editor’s note: If you would like to respond to this or any article on, or if you would like to address an issue we haven’t yet covered, we welcome thoughtful and articulate Letters to the Editor. You can email yours to: justin(at)theindependent(dot)ca. Not all letters will be printed, but all will be read.

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