Collective bargaining as a human right

The way it's supposed to be:
Collective bargaining as a human rights and labour relations issue in Canada

By Roy J. Adams
Professor Emeritus, McMaster University

A talk presented on 24 March 2005 at the National Press Club, Ottawa, on the occasion of the launch of Collective Bargaining: Human Right or Canadian Illusion by Derek Fudge and John Brewin

The basic proposition presented and elaborated in this book is that all Canadian workers (indeed, workers everywhere) have a fundamental human right to collectively negotiate their conditions of employment. What that means on the ground has been worked out by the International Labour Organization in the context of its relevant conventions and jurisprudence. If the ILO’s vision of employment relations consistent with core human rights standards were to become a reality in Canada, our system of employment relations would look a lot different than it does today.

First, nearly all Canadian workers would have some form of independent collective representation. In some enterprises employees would choose representatives on an informal basis and they would meet from time to time with their employer to discuss issues as they arise.

In some cases, labour and management would have a more formal, although voluntarily negotiated, relationship in place. An example is the relationship between faculty members and administration at McMaster University. In the 1950s the faculty formed an association that continues to exist. For some time leaders of the association and top administration officials met and discussed issues as they arose. But over the years the parties developed a more formal relationship. Today, wages and benefits are negotiated in a format similar to that which takes place in so-called “unionized” workplaces. If there is an impasse it is submitted to binding arbitration. There is also a formal grievance procedure and the faculty association has representatives on a wide range of university committees. Both the association and the administration believe that this arrangement provides for more flexibility than is allowed for under the rules imposed by the Ontario Labour Relations Act.

Critical to workers

Although the labour relations legislation that is in place across the country imposes somewhat rigid structures and processes, it also provides workers and their unions with many advantages. Statutory protection of workers’ rights has often proven to be critical in order for bargaining relationships to be established and maintained when workers are faced with reluctant employers. Thus, in an ILO-inspired employment relations system there would be lots of government certified exclusive bargaining agents.

The choice of which of these options to go for would be up to employees and their employers. But except for top executives and people in very small firms, almost no one would be “unorganized.” The ILO considers “social partnership” to be an essential element of every democratic society and employee representation is an essential element of social partnership.

In an employment relations system consistent with international human rights norms, all Canadian workers would have the right to strike and could not be legally dismissed for exercising that right. According to ILO standards, the right to strike is an essential and indivisible aspect of freedom of association and the right to bargain collectively. The right may be regulated. For instance, employees might be required to give notice if they intend to engage in concerted activity. But it may not be denied or regulated unreasonably.

To acquire the right to strike today, private sector workers in Canada are required to go through an arduous, obstacle-laden and usually adversarial process leading to the certification of an exclusive agent. Workers who prefer to negotiate under a less formal and less regulated format are denied the right to strike. In my judgment, that is unreasonable and needs to change. Some workers in Canada, those excluded from the various statutes, have no right to strike at all and no way to secure it. That is absolutely a violation of international norms. When they engage in a legal strike, public sector workers are commonly ordered back to work. That is also a violation of their right to strike, and an infringement of the international human rights standards Canada has pledged to respect. That practice, as this book makes clear, has been repeatedly condemned by the ILO’s Committee on Freedom of Association. Indeed, the international community knows Canada to be the world’s foremost violator of this human rights norm.

Fewer strikes?

If all Canadian workers had the right to strike, would we have even more frequent disruptions than we do today? Most likely there would be less. In countries with very high rates of collective bargaining coverage such as Scandinavia, strike rates are well below those in Canada. In fact, we have one of the worse records in the world. Legal hobbling of the right to strike has been a disaster. It has produced the opposite from the intended effect.

If the ILO’s vision of a system consistent with international human rights norms were to materialize in Canada we would think about collective bargaining much differently than we do today. For example, as things now stand, the press commonly portrays collective bargaining as something employees turn to in a desperate effort to change the behaviour of an abusive employer. If we lived in the decent society envisioned in ILO standards, it would be viewed instead as a natural and necessary element of democracy. The absence of collective bargaining would be considered abhorrent – roughly akin to political tyranny.

Regulation without representation (the state of affairs in enterprises without collective bargaining) would be regarded as a denial of human dignity – a fatal insult to democratic norms and a close cousin to slavery. After all, at its core, slavery is a state of affairs in which those subject to rules, regulations and commands have no say in the making of those rules. One cannot escape from slavery. Similarly, in an unorganized society, although one may change jobs, one cannot escape from regulation without representation. This condition is sometimes referred to as “wage slavery.”

If the ILO’s vision of a system that met international standards were to become a reality, collective bargaining might well become thought of as a civic duty – an exercise in the strengthening of democratic institutions. In a system in which the citizens daily participate in a milieu characterized by the absence of representation, acceptance of authoritarian forms of social organization are reinforced. Order takers are accustomed to accept subservience to unaccountable authority. Such habits are the antithesis of those necessary for a healthy political democracy.

Canada's promise

Canada has promised (and solemnly at that) to promote ILO standards and the development of an employment system consistent with those standards. But our federal and provincial governments have reneged on that pledge. They have put in place instead a system that creates the false impression that employees with no state-certified agent have no collective rights whatsoever. In fact, in addition to the human rights standards that Canada has promised to promote and abide by, the Canadian Supreme Court has declared that all Canadian workers, whether represented by a certified agent or not, have the right to organize, to choose their own leaders, to formulate their own program, and to make representations to their employers.

Contrary to their international obligations, Canadian governments have put in place a system that falsely suggests that employers of employees without certified agents, have no duty to consult with representatives of those employees. The system that now exists in Canada permits companies like Wal-Mart to aggressively pursue policies clearly intended to deny the human and constitutional rights of their employees. But, in its recent Dunmore Decision, the Supreme Court strongly implied that employers have a responsibility to recognize independently-chosen employee representatives, whether certified or not, and deal with them with a view towards resolving issues raised.

Canada’s international obligation to promote ILO standards has existed for some time but in 1998, the federal government, in the context of the ILO’s Declaration of Fundamental Principles and Rights at Work, solemnly reaffimed its support of those principles including its oath to promote collective bargaining with a view towards its benefits being enjoyed by the largest number of Canadian workers. Recently, I sent a letter to all Ministers of Labour across the country asking what they were doing to comply with Canada’s international obligations. The short answer is that no jurisdiction has instituted a plan for making workers more aware of their constitutional and human right to organize and bargain collectively or for increasing the collective bargaining participation rate. Indeed, since the pledge was made, the rate has fallen.

Campaign deserves support

This book and the UFCW-NUPGE campaign that it sets in motion is critical not only for the labour movement but also for the future of Canadian democracy. It needs your support. Please take the time to find out more about international human rights standards and about Canada’s pledge to abide by and promote them. Insist that Canadian governments live up to their promises. After all those promises were made on behalf of you and I and our government’s failure to deliver on them is embarrassing us on the world stage. Even more importantly, it is weakening the fibre of our democratic institutions. NUPGE

Biographical Notes

Roy J. Adams is Chair of the Steering Committee of the Society for the
Promotion of Human Rights in Employment, an organization composed of leading labour and human rights experts from around the globe. SPHRE's mission is to promote awareness, understanding and respect for core labour rights as human rights.

Professor Emeritus at McMaster University in Hamilton, Canada, Adams is internationally recognized for his work in labour policy and human rights. He has conducted research and taught at universities and institutes around the globe and has been invited to lecture at such prestigious institutions as Oxford University, the Wharton Business School, the European Institute of Business Administration (INSEAD) and the London School of Economics.

A past president of the Canadian Industrial Relations Association, Adams served as Canadian Pacific Distinguished Visiting Professor at the University of Toronto in 1990, Distinguished Visiting Professor at the University of Western Australia in 1996 and in 1997 received the Canadian Industrial Relations Association's highest award for outstanding contributions to knowledge of Canadian and international industrial relations. Adams is a past-director of McMaster University's innovative Theme School on International Justice and Human Rights and a member of the International Commission on Labour Rights.