Effect of SFL on Pvt Sector
If SCC continues to rely on intl
Current Status of Right to Strike
in 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?
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,
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?
Union plurality and Wagner
• Lance Compa at Cornell says it is a fair “tradeoff;” a “paradigmatic application of the ILO’s
flexibility and pragmatism.”
• But the ILO’s 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.”
Options consistent with CFA
• 1. Where no exclusive agent, all legit
minority unions have protected right to
bargain (for own members) and to strike.
(Justice Winkler’s 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.
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.
If no Govt Action and appeal to
• SCC must find that the Canadian Wagner
– 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.
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