Effect of SFL on Pvt Sector

1
Effect of SFL on Pvt Sector

• If SCC continues to rely on intl norms

2
Current Status of Right to Strikein Private
Sector

• Workers covered by a Wagner Model Statute, with
  no certified bargaining agent, have no protected
  right to strike.
• Must certify an exclusive agent to get protected
  strike right.
• Question Is that requirement consistent with
  international law?

3
Much Depends on Minority Union Rights Under Intl
Law

• -Minority unions have right to organize
  unhindered, right to speak for members, right to
  strike.
• -In addn, the most representative union (or
  coalition) has right to negotiate an agreement
  for whole bargaining unit.
• -other minority unions must conform to terms of
  the agreement (notice, timeliness).

4
Union plurality and Wagner

• Union plurality (with special rights for the
  most representative union, or coalition), is
  most common situation globally exclusive agent
  statutes are rare.
• Ques is a Wagner law that privileges majority
  unions while providing little protection to
  minority unions, a trade-off acceptable under
  intl norms?

5
Union plurality and Wagner continued

• Lance Compa at Cornell says it is a fair
  trade-off a paradigmatic application of the
  ILOs flexibility and pragmatism.
• But the ILOs Ctee on Freedom of Assn says
  Where, under a system for nominating an
  exclusive bargaining agent, there is no union
  representing the required percentage to be so
  designated, collective bargaining rights should
  be granted to all the unions in this unit, at
  least on behalf of their own members.

6
Options consistent with CFA standard

• 1. Where no exclusive agent, all legit minority
  unions have protected right to bargain (for own
  members) and to strike. (Justice Winklers
  Nightmare).
• 2. Employers pressured to (voluntarily)
  recognize most rep union and negotiate agreement
  (with acceptable strike clause) covering whole
  bargaining unit.
• 3. Govts re-do Wagner statutes.

7
A practical (and principled) statutory option

• Labour boards certify both exclusive agents and
  most representative agents
• Most rep agents have same rights to bargain as
  exclusive agents but not exclusive status
• To be certified, a most rep union or coalition,
  must demonstrate 30 support.
• May be decertified if 70 in favour.
• Barg rgts can be challenged at timely periods.
• Why? Promotes collective bargaining (per intl
  law) strengthens Charter values of freedom,
  dignity, democracy, equality with minimal
  disruption to professional capital invested in
  Wagner system.

8
If no Govt Action and appeal to courts

• SCC must find that the Canadian Wagner Model
• does not provide at least as great a level of
  protection as is found in intl human rights
  documents Canada has ratified.
• It has instead a deliberate and calculated
  chilling effect on nonmajority unionism which
• substantially interferes with the exercise of the
  Charter-guaranteed rights to organize, bargain
  and strike.

9
One addl option (maybe)

• Under the US Wagner Model
• Workers covered by statute (but with no certified
  agent) may engage in concerted action including
  the right to strike for recognition but
• If strike to improve conditions, employer may
  hire permanent strikebreakers (vs. intl law).
• Minority unions may handle members grievances