Landmark 2007 Supreme Court ruling on collective bargaining means unions must have compulsory check-off of union dues to represent workers, says ALRB.
Edmonton (25 Nov. 2009) - The Alberta Labour Relations Board (ALRB) has suspended an eight-month lockout by Old Dutch Foods Ltd. (ODF) with a decision declaring that the Alberta Labour Relations Code (ALRC) interferes with the constitutional rights of workers by failing to protect unions in the spirit of the Rand formula.
The Rand formula dates back to a 1946 ruling by Justice Ivan Rand of the Supreme Court of Canada ending the historic Ford strike in Windsor, Ont., the previous year. His decision included a formula based on the assumption that unions perform an essential function for all workers and must therefore have the financial means to carry out their duties and programs.
The Rand formula requires an employer to deduct (as union dues) the same portion of the salaries of all employees within the bargaining unit, whether they choose to join the union or not.
The Canada Labour Code and a number of provincial labour relations laws contain provisions requiring the Rand Formula to be observed when certain conditions are met. The Alberta code does not.
The ALRB ruling, written by vice-chair Gerald A. Lucas, gives the provincial Conservative government 12 months to revise its labour code accordingly.
When Alberta adopted its labour code the province failed to provide "compulsory check-off of union dues" even though it followed the practice common in many other jurisdictions by imposing on unions a requirement to "fairly represent all members of the bargaining unit," Lucas noted.
As a result, he found, the province failed to address "what can be fairly described as a balancing of all these principles and obligations" by requiring all members of a bargaining unit pay union dues.
"Now that the Supreme Court has concluded that the protection of freedom of association, afforded by [Section 2 (d) of the Charter of Rights and Freedoms], extends to the process of collective bargaining, and that the payment of union dues has been recognized as part of the freedom of association, the obvious conclusion is that the continued absence from the code of a statutory Rand formula is a violation of s. 2 (d) that can only be remedied by government action," Lucas wrote.
"It follows that the inability of the ODF workers to bargain collectively is linked to the absence from the Code of a statutory Rand formula. The union has demonstrated to our satisfaction that this absence is solely attributable to government and is a violation of the fundamental right of these workers under s. 2 (d) right to bargain collectively."
All workers benefit and all should contribute
"This decision is a logical extension of the June 2007 Supreme Court decision making collective bargaining a constitutional right of all workers," says James Clancy, president of the National Union of Public and General Employees (NUPGE).
"For a union, the ability to effectively participate in collective bargaining is intrinsically linked to the principle behind the Rand formula. The union is responsible for all of its members and if all members reap the benefits of the union's accomplishments, then all should contribute equally. Let's hope this decision provides the momentum to change labour laws in the those provinces that currently don't provide the legal protection of union security recognized under the Rand formula."
The Canada Labour Code and the labour laws of a majority of provinces contain provisions requiring the Rand formula to be respected when certain conditions are met. Besides Alberta, the Rand Formula is not yet mandatory in New Brunswick, Nova Scotia and P.E.I.
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE