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Right-to-Work Law and Its Implications for Labour Legislation in CanadaIntroductionFor the last few years, a major showdown has been shaping up between the progressive sections of Canada, which have always been associated with the trade union movement and social democracy, and the rightist sections which promote anti-unionism. While the former groups seek to consolidate the labor organizations, the latter groups aim at eliminating the trade union rights. People like me think that trade unions are working for the collective good. But others think that they are not conducive for individual worker’s liberty. While the former view emphasizes that trade unions must be consolidated and strengthened for the collective good of all employees, the latter view holds that trade unions must be destabilized and weakened for the good of individual worker preferring not to join or pay dues to the union.
This confrontation centers on the concept of right-to-work, which is currently being discussed and debated widely. In order to have a good understanding of the issue, we need to know about the concept of right-to-work, know what both the sides (for and against) say about it and understand its implications for Canada. What is Right-to-Work? There are some misconceptions about the term ‘Right to Work’ in the popular understanding.
The term sounds positive as if it endows or empowers the working masses with a right. However, it is a misnomer that has little to do with the right of an individual to get gainful employment, as it might imply in common sense. A right-to-work law does not ensure anyone a job, protect against unfair firing, secure equitable wages, or guarantee decent working conditions. There are debates and controversies about it. Many of the organized workers are opposed to it. The Context of Human Rights In the human rights context, the phrase ‘right to work’ as such is a fundamental human right emphasizing that human beings have a right to engage in productive employment. This right is enshrined in the Universal Declaration of Human Rights, according to which everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment (See Article 23 of Universal Declaration of Human Rights, 1948).
The Context of Labour Law, On the other hand, the ‘right to work law’, which is currently under debate in the context of labor legislation, is a statute that prohibits union security agreements between employers and unions. Such union security clauses govern the extent to which an established union can require employees’ membership, payment of union dues, or fees as a condition of employment, either before or after being employed. When such legislation is in implementation, employees can opt out of union membership and pay for the benefits of union representation they receive. While unions are required to fairly represent all the employees covered by a particular collective bargaining agreement, the right to work law apparently takes away the right of labor and management to freely negotiate a union security clause. To differentiate the term in the labor law context from that of human rights, the phrase is generally hyphenated as ‘right-to-work’, which often entails with the word ‘law’ Thus, it is normally referred as ‘right-to-work law’.What the Proponents SayProponents, of right-to-work laws, many of whom claim to be libertarians, argue that right-to-work law will free the individual worker from the clutches of union and a right-to-work environment will help to attract industry and encourage economic development.
They argue that the demands of unions for higher wages and benefits are detrimental to the economy and employers prefer to ship jobs to areas of cheap labor, where non-unionized workers are willing to work for low wages. The views of the proponents in Canada are concisely summarized by Lammam and MacIntyre (2014). Joining a union and paying full dues can be made a condition for employment. If someone wants a particular job, they have no choice but to join a union and pay dues. Unions can be less responsive to their membership since members don’t have the option to leave the union. Unions often engage in political activities outside their primary role as contract negotiators for their members. Dues paid by union members can be used for activities unrelated to representing members. Right-to-Work states enjoy increased economic growth, employment, and in-migration from other states. Non-Right-to-Work states will be at a competitive disadvantage in attracting manufacturing investment and that will result in fewer employment opportunities (Lammam and MacIntyre, 2014). What the Opponents according to the opponents of right-to-work laws, many of whom are unionists, such laws make it difficult for unions to organize since they make it illegal to require employees to pay union dues as a condition of employment. Such laws undermine union strength and rights to collective bargaining, through which improved wages and benefits for employees are achieved. Thus they will contribute to lower wages and greater income disparity. As stated by the Bureau of Labour Education (2011), a right-to-work law prohibits employers and employees from negotiating a union security clause. Collective bargaining contracts cannot require a worker to join a union. Hence there is no ‘forced unionism’ in free-bargaining states (Non-Right-to-Work states).
A union cannot require an ‘objector’ non-member to pay for any union activities unrelated to collective bargaining, contract administration, and grievance adjustment. Employees who belong to unions receive better wages, benefits, and working conditions than non-union employees. Over time, a right-to-work law is likely to undermine the wage and benefit gains, and prevent adequate representation for workers. States with right-to-work laws were actually worse off in terms of their state’s Gross State Product per capita (GSP). They tended to experience slower growth after adopting right-to-work legislation. 11 out of 22 right-to-work states have poverty rates over 15%, whereas only 6 out of 28 free-bargaining states have poverty rates over 15%. The average poverty rate for the former states is 15% whereas for the latter states is 12.8% (Sanford and Troske, 2007 quoted in Bureau of Labor Education, 2011).
In right-to-work states, unions are obligated to represent the interests of all members of the bargaining unit but have no power to collect from individual members the dues that they require to finance union activities. The non-members become ‘free riders’ (not paying, but benefiting). This will weaken the bargaining power of the unions. Implications for Canadian a deeply concerned voice, Black and Silver (2012, para 1) state:“A major confrontation is shaping up between progressive elements of Canadian society associated with the trade union movement and social democracy, and anti-union organizations (many of them inspired and guided by the National Right-to-Work Committee based in Virginia) that are seeking to eliminate the institutional arrangements that protect trade union rights and secure their role in the life of Canada. This conflict involves a clash over fundamental values.
At stake is the very nature of Canadian society—the kind of society we bequeath to future generations.” In contrast, Lammam and MacIntyre (2014, last para) state: “Unless Ontario becomes a right-to-work state, the province will continue to be at a competitive disadvantage for attracting manufacturing investment. That could mean fewer jobs for Ontarians”. The Rand Formula is a provision in many collective agreements, which requires employers to deduct union dues from all employees in the bargaining unit and remit them to the union. It takes its name from Chief Justice Ivan Rand of the Supreme Court of Canada, who included the provision in his arbitration of a dispute between Ford and the United Auto Workers in 1945. The Chief Justice believed that unions were obliged to look after the interests of all employees, and must, therefore, have the resources required to discharge this obligation.
Thus, those who benefit from the efforts of the union should pay their dues, even if they choose not to be members of the union (Black and Silver, 2012). Lynk (2002) quotes the reviewing of the Canada Labour Code by the Federal Task Force in 1996, which observes: ‘Canadian trade unions exhibit a high level of internal democracy and genuinely represent the interests and wishes of their membership’. He further adds that Canadian labor law prohibits trade unions from acting in a manner that is arbitrary, discriminatory, or in bad faith towards any employee, whether a member or not. As for the criticism against unions that they engage in political activities, Lynk (2002) says that it is accepted in Canadian politics and law for a union to act as a political voice of labor. The Canadian unions have acted as pressure groups in support of a wide variety of public policy goals.
The right of unions to spend their funds on other issues of social concern apart from spending for collective bargaining has been upheld by the Supreme Court of Canada in 1991 (Black and Silver, 2012). The employers and the unions operate in certain social, economic, political and cultural contexts that influence their capacities for collective bargaining. Hence they have a right to spend their funds to act upon these contexts to create a favorable environment for successful collective bargaining. Cowan (2013) observes:“Canadian right-to-work legislation would never resemble American laws anyway. The two nations have very different legal approaches when it comes to unions, both based in legal precedents more than 60 years old. At the heart of American labor law is the 1947 union-restricting Taft-Hartley Act; in Canada, we have the Rand Formula, from 1946, which affirmed unions’ ability to collect dues, even from non-union members. This means any Canadian politician seeking to pass right-to-work laws would not only have to fight a protracted war with every union in Canada but a lengthy legal battle as well.” SummaryAs we have discussed, right-to-work must be understood in its legal context and be differentiated from the human rights context. We have seen that opinions are divided over the introduction of the right-to-work law in Canada. Proponents of the right-to-work law who mostly claim to be libertarians argue that unionism curbs individual freedom and hinders industrial growth. But the opponents of the right-to-work law argue that this law intends to curb the collective voice of employees by weakening the unions.
An individual employee cannot have equal footing with the employing organization to bargain regarding his / her working conditions. Unionized employees receive better wages, benefits and working conditions compared to the non-union employees. The opponents of this law have shown with data that the non-right-to-work states are better off in terms of poverty and economic growth. Strengthened by the Rand formula, Canadian unions have exhibited a high level of internal democracy and responsibility not only for their members but also for the non-members as well as for the whole society by giving a voice for major social issues. The employers and the unions operate in certain social, economic, political and cultural contexts that influence their capacities for collective bargaining.
Hence the unions have a right to spend their funds to act upon these contexts to create a favorable environment for successful collective bargaining. Vibrant unions are a central part of building a better world. If right-to-work laws are enacted in Canada, they are likely to ruin the gains that have been won through the use of the Rand Formula.
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