16 JUST LABOUR vol. 1 (2002), 16-30

UNION DEMOCRACY AND THE LAW IN CANADA

Michael Lynk Faculty of Law, University of Western Ontario, London, Ontario, Canada

The modern direction of Canadian Canadian unions have historically labour and employment law has encouraged a culture of democratic been significantly influenced by practices, and they have been able to legal developments in the United give voice to both the employment States and Great Britain. Our heavily and the social aspirations of their regulated system of industrial membership. The 1996 federal Task relations is directly borrowed from Force reviewing the Canada Labour the American Wagner Act. Canadian Code stated that: law on wrongful dismissal has been largely imported from the English ”Canadian trade unions exhibit a common law. Yet, unlike these two high level of internal democracy source countries, Canada has taken a and genuinely represent the distinct path respecting the legal interests and wishes of their regulation of union democracy and membership.” internal trade union affairs. While both the U.S. Congress and the Second, unions in Canada have British Parliament have enacted generally avoided both the stain of stringent legislation governing corruption that has tainted parts of union elections and union officers’ the American labour movement, and duties, the Canadian approach has the specter of unbridled militancy been largely one of statutory that had characterized a number of abstinence. Comparatively speaking, British unions. While incidences of Canadian unions enjoy greater corrupt unionism have occasionally institutional freedom of association appeared in Canada, unions that than their American and British encouraged or tolerated patterns of siblings, although they also suffer, corruption or violence in Canada like their counterparts, from a were generally outside the largely conservative judiciary that mainstream labour congresses, or has commonly misunderstood the were expelled once the mainstream particular culture and social role of leadership was satisfied that the trade unions. patterns were endemic. Four reasons in particular Third, there has never been a explain this particular Canadian sustained political or popular approach towards the law demand in Canada for a significant governing union democracy. First, legislative intrusion into internal Lynk 17 union affairs. The cry for “union statutory abstinence to mean that democracy” from conservative their jurisdiction to oversee the political parties has never acquired democratic life of unions is the influence it has in the United restricted. The prevailing view is States and Britain. As well, expressed in a 1993 Ontario Labour Canadian employers, unlike their Relations Board ruling RWDSU and American counterparts, have New Dominion Stores involving a generally accepted the fundamental complex trusteeship application: premises of collective bargaining, and have not built up a significant “The [Ontario] Labour Relations antiunion consulting industry or Act is primarily concerned about sought as a common strategy to institutional collective bargaining undermine the legitimacy of unions. relationships, the trade union in And fourth, the traditional its role as statutory bargaining British common law concept of agent. The statute does not unions as voluntary organizations, purport to regulate internal union and therefore entitled to self- affairs, nor does it prescribe any government, has long influenced general code of democratic practice. Canadian legislators and courts. The Indeed, the statute is exceedingly English and Canadian courts viewed (and we think, intentionally) the membership relationships of sparse in respect of such matters, these organizations as purely leaving them to be determined, personal and contractual, and they for the most part, in accordance therefore would not review an with the union’s constitution” internal decision of a union except [italics in original]. on narrow procedural grounds. Consequently, the appropriate THE LEGAL REGULATION OF forum for litigating issues of union UNION DEMOCRACY IN democracy in Canada is divided CANADA between labour relations boards and the courts. The division of The legislative intervention into jurisdiction is the residual internal trade union affairs by the consequence of the legislative federal government and the ten reluctance to intervene through provinces has been quite modest. labour relations boards in internal While the certification process union affairs. This has left the courts requires applicant unions to have a to fill the judicial vacuum. If constitution and a set of elected specifically addressed in legislation, officers, Canadian labour legislation then the particular labour relations is silent on the democratic quality by board has the jurisdiction to rule on which union officers are elected. In the matter. If the legislation is silent, turn, labour boards have read this then the common law (or, in Québec, 18 JUST LABOUR vol. 1 (2002), 16-30 the civil law) courts assume the activity in some jurisdictions, the jurisdiction, which has given them supervision of internal union affairs the predominant role in supervising is the Canadian judiciary’s only union constitutions. remaining area of original The primary legal tool for the jurisdiction over Canadian industrial courts to intervene has been a relations. reliance on the contract theory of union constitutions. This theory UNION DEMOCRACY: holds that every member, by joining ELECTIONS AND OFFICERS the union, enters into a contractual relationship through the constitution The statutory regulation of union with every other member. This elections and union officers is almost allows a dissident member to sue the entirely absent in Canadian labour leadership on breach of contract statutes. Québec legislation grounds if he or she can establish a regulates only one discrete violation of a constitutional procedural aspect of the electoral provision. In turn, this has permitted process: it requires that elections for the courts to act as an appellate union office be conducted by secret body, interpreting the contracts and ballot. Manitoba and New providing relief to union members Brunswick forbid a union, or for any violation of the constitution someone acting on behalf of a union, and bylaws. to interfere through intimidation or The irony of this significant coercion with the right of a union residual role of the courts in union member to become, or remain, a democracy issues should not be lost. union officer. Saskatchewan requires The Canadian labour movement that a union give members fought hard during the 1930s and reasonable notice of all meetings 1940s for legislation that would that they are entitled to attend. In remove the courts, whom they saw Ontario, the then-governing New as strongly hostile to unions and Democratic Party in 1993 restricted imbued with a stiffly contractual the ability of the parent leadership approach to decision-making, from of construction unions to remove any involvement in the legal from office, alter the duties of, or regulation of industrial relations. impose a penalty on, an elected or Yet, the labour movement, by also appointed officer without just cause. opposing any statutory regulation of Otherwise, the rules governing such their internal affairs, has unwittingly matters as the rules for elections and sustained a limited but potentially candidate conduct, length of office, potent involvement for the courts. the fiduciary responsibilities of Indeed, aside from judicial review of officers, and removal from office are labour board decisions and the governed almost entirely by union occasional monitoring of picket line constitutions, and supervised Lynk 19 primarily by the courts as a law. The common law dominates the contractual matter. regulation of this area of trade union activities, although again there is The conduct of union elections scant caselaw to draw on. Legislation in Canada has regulated The Canadian common law has the duties of officers in only one stated that the results of an election area: the liability of union leaders for will be upheld if it has been participation in an unlawful strike or conducted in substantial compliance for violating other provisions of the with the union’s constitution and governing labour statute. by-laws. A mere irregularity in The common law in Canada has campaign or voting procedures that commented on two areas of has not materially affected the responsibility resting with union election results will usually not be officers: the scope of presidential sufficient to nullify a union election. authority in relation to the union However, while the Canadian courts executive and the nature of the have expressed this as a principle, fiduciary duty of honesty owed by they have not been shy about an officer to her or his national defining a broad range of procedural union. Both common law duties breaches of an internal election as a speak to the subordination of significant irregularity requiring a individual or local officers to new election. The courts have collective authority in the decision intervened to quash union elections making and the management of where voting secrecy was union assets. inadequate, ballots were distributed The courts have drawn from to ineligible members, ballots were prevailing principles of company tampered with, eligible members law to prefer the primacy of were not given ballots, a voting collective decision-making over the deadline extension was not authority of an individual executive communicated to some of the union officer. In FASWOC v. Schuster, a electorate, and ballots were 1987 British Columbia case, a union numbered and printed in a manner president and the national executive which could reveal the identity and fell into a paralyzing dispute over voting choice of the union members. the president’s authority to dismiss staff unilaterally and to initiate legal Union officers action in the name of the union. The British Columbia Supreme Court, The duties and liabilities of union comparing similar circumstances officers in Canadian law are found between company officers and primarily in the governing union corporate boards, read the union constitution, and are enforced by the constitution to say that the courts within the context of contract 20 JUST LABOUR vol. 1 (2002), 16-30 president’s authority was provide proper notice of the subordinate to the executive. allegations or the hearing, or where The courts have also held that internal tribunal bias was found. local union officers have a fiduciary Union officers in Ontario’s duty towards the parent union to act construction sector, where unions honestly when dealing with union are predominantly led by assets. In CUPE v. Deveau, a 1977 international (i.e. American) unions, case from Nova Scotia, the union have been particularly vulnerable to constitution stated that the assets of their parent union’s penchant for a local, on dissolution, all reverted to imposing trusteeships over the parent. Before the members of a Canadian locals. The Ontario Labour local seceded to join another union, Relations Act was recently amended the local executive arranged to to forbid a parent union from distribute almost all the funds of the ousting an officer from her or his local to the membership in the guise position unless the Ontario Labour of a cost-of-living allowance. The Relations Board was satisfied that Nova Scotia Court of Appeal found just cause was established. Yet, even that the local executive violated its here, the Board has resisted a broad fiduciary duty it owed to the parent reading of the provision, stating in union, and ordered the officers one recent officer removal case that personally liable for the improperly the purpose of the amendments was dispersed funds. to protect local union autonomy and Three provinces, British was not meant to address the rights Columbia, Alberta, and of individual union officers. Saskatchewan, have recently amended their labour legislation to THE UNION AND INDIVIDUAL provide that deposed or disciplined MEMBERS: DISCIPLINE AND officers and members are entitled to REPRESENTATION natural justice (procedural fairness) throughout the internal proceedings The majoritarian principle of against them. In these provinces, representation, that if a majority of labour relations boards now have employees in a bargaining unit vote jurisdiction over some officer in favour of a particular union as removal issues, and they have the their bargaining representative, the authority to look beyond union union becomes the exclusive constitutions to the common law representative for all employees in principles of natural justice. In the bargaining unit, is a centrepiece recent rulings applying this new of the Wagner Act legislation in the power, labour boards in these United States and Canada. To provinces have struck down temper the extensive authority over decisions to remove officers where the membership that the principle the union disciplinary body did not gives to unions, Canadian Lynk 21 legislatures have enacted provisions from employment is only permitted to regulate both the limits of internal if the member has failed to pay union discipline and the quality of periodic union dues; (ii) dismissal is collective agreement representation. prohibited for various stated In both areas, the degree of reasons, such as the discriminatory legislative intervention has been application of membership rules, restrained, and jurisdiction has been membership in another union, or split between labour relations engaging in activity against the boards and the courts. incumbent trade union; and (iii) dismissal is prohibited unless the Union Discipline reasons for expulsion are specifically permitted by statute. Legislatures in Canada have enacted These provisions limit the reasons two primary methods for regulating for which union discipline can result union authority to discipline in the loss of employment. They do members. The first has been to blunt not otherwise restrict the right of the impact of an expulsion or unions to discipline members for suspension decision without breaches of listed constitutional limiting the union’s right to make provisions. that decision. Essentially, this is The second legislative method of done by giving the union the power protecting union members has been to discipline, but restricting it from to regulate the union disciplinary compelling the employer to dismiss process itself. One way has been to an employee on the sole basis that ensure minimum procedural she or he has been expelled or standards in internal disciplinary suspended from union membership. hearings. Several jurisdictions, These provisions act as a legal Alberta, New Brunswick, Nova counter-balance to the legislative Scotia, Saskatchewan and the federal right of unions to negotiate union sector, ensure that union members security clauses in collective receive a disciplinary hearing that agreements that require all meets the requirements of fairness. employees in the bargaining unit to These requirements usually include: pay union dues or even, in some the right to know the charges; the workplaces, to hold union right to reasonable notice of the membership as a condition of hearing dates; the charges must be employment. specified in the constitution; the trial Legislative limitations on must be in substantial compliance dismissing an employee from with the constitutional employment as a result of an requirements; the right to a hearing, expulsion or suspension from union including the ability to call evidence membership generally fall into three and make submissions; the overlapping categories: (i) dismissal presiding panel members must act 22 JUST LABOUR vol. 1 (2002), 16-30

and decide in good faith; the verdict internal punishment (expulsion must be based only on the actual from the union) of the members for evidence adduced; and, in serious strike-breaking lay within the cases, the right to be represented by authority of the union: counsel. Legislatures have also intervened “Any crossing of a picket line by to regulate the degree of a member of the union defies the punishment which unions can will of the majority of the impose on their members. This has members of the bargaining unit been achieved by prohibiting unions and constitutes strike breaking, from acting in an unreasonable, which in any form, certainly unfair, or discriminatory manner. threatens the effectiveness of the Generally, if a union can satisfy a strike, and, in many cases, the labour relations board that the very life and existence of the discipline serves a labour relations union local. It is difficult to purpose, that it has not been applied imagine any other act by a selectively, and that the punishment member which a union would is proportionate to the offence, then consider to be more treasonous the union’s decision to discipline a conduct to it.” member will not be struck down. The majority of union discipline However, the ability by a union to cases that have reached labour punish for strike-breaking is not boards in Canada have involved open-ended. If the strike or picket issues of either crossing picket lines lines are unlawful, any member who or allegations of dual membership refuses to comply with it would be and related conduct detrimental to protected from internal discipline. the union. Labour boards have As well, the internal discipline must clearly recognized that individual be consistently applied, and based members have the right to be free of upon clear rules or policy in the spurious punishment or retaliation, constitution or by-laws. but they have balanced this imperative with the recognition that Duty of Fair Representation unions must have the authority to act against strike breakers if they are Canadian labour law has established to be able to maintain an effective a duty of fair representation that bargaining force. The 1980 decision prohibits trade unions from acting in of the Saskatchewan Labour a manner that is arbitrary, Relations Board in IWA and Moose discriminatory, or in bad faith Jaw Sash and Door Co., where several towards any employee (and not just union members had refused to union members) whom it represents. honour a legal picket line is The imposition of the duty is a illustrative. The Board ruled that the statutory quid pro quo for the union’s Lynk 23 exclusive bargaining rights. It exists unions must weigh, including the in every Canadian jurisdiction availability of resources, the through explicit statutory provision competing demands by different or through a common law obligation groups of employees, and the fact enforceable by the courts. The that most local union leaders are Supreme Court of Canada has stated volunteers. While labour boards that the duty requires the receive a relatively high volume of representation to be “fair, genuine fair representation complaints, only and not merely apparent, a small portion, less than 2 per cent , undertaken with integrity and are successful against unions. This is competence, without serious or likely the result of two factors: the major negligence, and without modest standard of representation hostility towards the employee.” that the law has imposed, and the In law, unions must represent generally satisfactory quality of the employees fairly during the work that unions perform on behalf administration of a collective of the employees they represent. agreement, and several jurisdictions have extended the duty to the union’s conduct during collective UNION GOVERNMENT: bargaining. In representing an TRUSTEESHIPS, CONSTITUTIONS employee, unions must turn their AND STRUCTURE mind to the merits of the issue, they must not act negligently during their Aside from a few legislative investigation, and their decisions requirements to file constitutions must not be tainted by malice or ill- and make financial information will. Should a labour board find a available to members, the union in breach of the duty, administrative apparatus of unions remedies include sending a is almost entirely left to the internal grievance to arbitration, ordering the constitution, with the courts union to pay for independent providing the final supervision. counsel to represent the grievor at Even with trusteeships, with all its arbitration, waiving any time limits potential for misuse to squelch objections to arbitration that the dissent and local democracy, there employer might have, and requiring has been little statutory intervention. the union to compensate the grievor for a portion of her or his losses Trusteeships should the grievance subsequently be successful at arbitration. The imposition of a trusteeship is a Since the duty was introduced in significant intrusion by a parent Canada in 1970, caselaw has shown union into the democratic life of a a considerable degree of sensitivity local. It usually involves the removal towards the various interests that from office of the locally elected 24 JUST LABOUR vol. 1 (2002), 16-30 officers, the surrender of control the trusteeship was still being served over its finances and administration, and where the parent could provide and the suspension of membership no assurances that local elections meetings and committees. Union would be held in the near future as trusteeships have been imposed required by the international only rarely in Canada, and generally constitution. only for a short duration. Primarily because the weapon of trusteeship Parent-Local Relationships has not often been used in an oppressive or authoritarian manner, With one exception, Canadian Canadian labour law has left the labour law has left the regulation of regulation of union trusteeships parent-local relations (aside from largely up to the labour movement. trusteeships) entirely in the hands of Only two provinces, Ontario and union constitutions and ultimately British Columbia, have legislation the courts. In Ontario, recent regarding trusteeships, and even amendments restricted the authority they focus largely on procedural of parent construction unions, issues. Both provinces require that a largely headquartered in the United parent union imposing trusteeship States, from intervening in the file a statement with the labour affairs of their Ontario locals relations board within sixty days without just cause. These provisions setting out the terms by which the have increased the role and trusteeship is to be exercised. authority of the construction locals However, the parent union is within the union in the areas of obliged only to seek consent from bargaining rights, work and the labour board should the geographic jurisdiction, and the trusteeship extend beyond a year. administration of benefit plans. In The only other limitation that either cases where the legislation conflicts province places over the exercise of with the parent union’s constitution, a trusteeship authority is the recent the statute prevails. requirement in Ontario that a parent Canadian courts have invariably union in the construction industry upheld the predominant cannot place a local into trusteeship constitutional authority of the without just cause. Where its parents during intra-union disputes jurisdiction has been invoked, the - defecting locals, conflicts over Ontario Board has generally bargaining authority, or ownership consented to a continuation of a of property. The courts apply trusteeship where a legitimate contract analysis to interpret the labour relations purpose can be union’s governing documents. established. It has refused to extend While this judicial line has been a trusteeship where it was not criticized by labour law academics satisfied that the original purpose of as a frustration of democratic Lynk 25 principles, it is a faithful application unions. A representation election is by the courts of the explicit location conducted by the appropriate labour of constitutional authority. board to determine a new Accordingly, decisions have stated bargaining agent. The effect of a that defecting locals are not allowed declaration by a labour board that a to hinder the efforts of the parent to union has acquired successorship recover assets constitutionally rights is two-fold: it grants the belonging to the central authority. In successor union all of the statutory effect, this prohibits dissidents bargaining rights and duties of its attempting to lead a local’s predecessor, and it requires the membership out of a union from employers of the affected union using the assets and resources of the membership to recognize the change local to finance the defection, and in bargaining agent status in all bans the insurgent local leadership respects. from using the name, trade marks, Second, when unions themselves or insignias of the parent union in decide for efficiency or institutional the new organization. reasons to merge or amalgamate with another union, they are Mergers and Amalgamations required to follow the merger provisions in their respective Mergers have been a growing trend constitutions. Canadian labour in the Canadian labour movement in relations boards have approved the 1990s. These consolidations have union mergers and amalgamations been in response both to the where they are satisfied that the vote increasing concentration among was held with sufficient notice, it Canadian corporations and to was organized by a duly elected member demand for more efficient executive, it was available to all delivery of bargaining and members, with relevant information administrative services. made available to all, and a bona Canadian labour law regulates fide opportunity was provided to two different types of union the membership to express their succession. Most commonly, unions views and democratically are required to seek successorship demonstrate their wishes. certifications from labour relations Underlying this liberal attitude has boards when ownership of the been the recognition by labour workplace changes hands or a boards of the importance of corporate merger or restructuring respecting the autonomy and has occurred. This is often quite internal traditions of union straightforward but a corporate governance. ownership change, merger, or restructuring can result in the intermingling of workforces and 26 JUST LABOUR vol. 1 (2002), 16-30

UNIONS AND POLITICS: THE USE involvement in selected union OF UNION DUES FOR POLITICAL causes? EXPRESSION These matters came to a head in Lavigne v. O.P.S.E.U., where the The idea that trade unions should Supreme Court of Canada in 1991 act as the political voice of labour, upheld the right of unions to spend rather than merely as the collective their funds on non-collective bargaining representative of bargaining objectives, despite a workers, has become accepted in claim by a dissident member that he Canadian politics and law, although objected to such expenditures. The not without controversy. The ruling gave considerably greater principal trade union congresses and freedom to Canadian unions to their affiliates in English Canada decide on dues expenditures than and Québec have long been closely their American and British affiliated with social democratic counterparts, where courts and parties. They have acted as pressure statutes have placed stringent groups in support of a wide variety limitations on union political and of public policy goals, and they have social spending. It also displayed the more than occasionally participated greater liberalism of the Supreme in political (and invariably illegal) Court of Canada towards union strikes protesting particular democracy issues, in contrast to the government policies. more jaundiced and inarticulate While there are a number of approach of many lower Canadian significant aspects concerning the courts. Lavigne now stands as the relationship between trade unions, most significant decision in politics, and the law in Canada, a Canadian law on internal democracy burning issue respecting union and on union rights and democracy has been the use of responsibilities. membership dues for social Mervyn Lavigne, an instructor at purposes beyond the confines of an Ontario community college, had collective bargaining and internal not joined the teachers’ union at the union administration. This issue college, but was nonetheless raises controversies that are at the required under the Rand formula to heart of the law and union pay the equivalent of union dues. In democracy debate: What is the 1984, Mr. Lavigne initiated a nature of freedom of association? challenge under the Charter of Rights What is the appropriate role of the and Freedoms arguing that the law in regulating internal trade provisions of the labour legislation union affairs? What is the social role which permitted the expenditure of of unions, and how is that balanced union dues contributed by non with the right of individual union members for purposes unrelated to members to abstain from collective bargaining contravened Lynk 27

his Charter guarantees to freedom of “The first [objective] is to ensure association and expression. While that unions have both the acknowledging that union dues resources and the mandate collected under the Rand Formula necessary to enable them to play a and spent on collective bargaining role in shaping the political, were justified, Mr. Lavigne objected economic and social context to financial contributions made by within which particular collective the union to the New Democratic agreements and labour relations Party, to a disarmament campaign, disputes will be negotiated or to pro-choice abortion groups, to resolved. The balance of power striking British miners, and to between management and labour medical aid programs in Nicaragua. at any given time or in any He sought a declaration that would particular industry or workplace allow him to withhold that portion is a product of many factors. It is of his dues which were spent on also a product of the state of non-collective bargaining causes that government legislation and he did not agree with. Mr. Lavigne policy, most obviously in the area was successful before the Ontario of labour relations itself, but also Supreme Court, but lost at the in regard to social and economic Ontario Court of Appeal, and then policy generally.” appealed to the Supreme Court of Canada. The Justice then spoke to the The Supreme Court of Canada importance of legislative restraint as was unanimous in dismissing Mr. a social tool in fostering union Lavigne’s application. The heart of autonomy and democratic self- the Supreme Court’s decision was government. Particularly significant expressed in the judgement of was his recognition of the Justice Gerald La Forest. He noted independence of unions as social that the purpose of the Rand actors: Formula was to ensure that unions have sufficient resources to “The integrity and status of participate in shaping the political, unions as democracies would be economic, and social context of jeopardized if the government’s labour relations, and to contribute to policy was, in effect, that unions democracy in the workplace. Before can spend their funds as they reviewing the importance of the choose according to majority vote Formula to the democratic provided the majority chooses to development of unions, La Forest set make expenditures the the dues deduction system within a government thinks are in the wider social context: interest of the union’s membership. It is, therefore, for the union itself to decide, by 28 JUST LABOUR vol. 1 (2002), 16-30

majority vote, which causes or democratic unionism, I would organizations it will support in add that the ability to opt out the interests of favourably would undermine the spirit of influencing the political, social solidarity which is so important and economic environment in to the emotional and symbolic which particular instances of underpinnings of unionism.” collective bargaining and labour- management dispute resolution Lavigne is emblematic in several will take place. The old slogan significant ways of the approach by that self-government entails the Canadian labour law towards right to be wrong may be a good unions and their internal way of summing up the governance. First, the principles of government’s objective of majoritarianism and exclusive fostering genuine and meaningful representation have been found to democracy in the workplace.” be consistent with the constitutional guarantees of freedom of association Finally, Justice La Forest connected and expression. Second, the the relationship between the present compulsory payment of union dues, system of mandatory union dues and the expenditure of those dues payments and its encouragement of funds on social and political causes union democracy by promoting outside of the realm of collective solidarity: bargaining, have also been found to be compliant with the Charter. “Compelling contributions by all Third, the modest degree of represented by the union, all who legislative intervention into the benefit from the union’s attempt internal affairs of unions in Canada to push the general political, has been reinforced by the Supreme social and economic environment Court on the specific grounds of in a direction favourable to promoting democracy and unions and their members, autonomy. And fourth, the provides the union with the protection of the rights of individual stable financial base needed to employees and members within underwrite political, economic unions, in itself an important value, and social activism. The fact that is to be balanced against the no restriction is put on the necessary requirements for manner in which money is solidarity and collective action that expended leaves the decision as provide unions with the primary to what is and what is not in the source of their strength. interests of the union and its Underlying the decision in members in the hands of the Lavigne is the implicit endorsement union membership. It, therefore, by the Supreme Court of the logic of clearly has the effect of promoting unions: their ability to transform an Lynk 29 individual employee’s illusory make into the internal affairs of liberty to bargain on an equal trade unions. Some prominent footing with her or his employer Canadian labour lawyers and into a meaningful collective liberty academics have argued that a more for all members of the unit. elaborate code of democratic conduct must be legislated in order CONCLUSION to ensure that the right to dissent, the right to be heard, and the right to Unions combine two fundamental participate are properly protected. and contradictory impulses that on This argument for a union members’ occasion rub up against each other. bill of rights in Canada is based not On the one hand, unions are so much on any historic or autonomous societies that combine contemporary pattern of entrenched service and civic responsibilities, abusive behaviour, as it is on the characterized by a tradition of open growing political and economic role democratic debate and dissent by of trade unions in modern society the membership in conventions and and the consequent public committee meetings. Indeed, responsibilities that come with that without internal democracy, unions role. Implicit in this view is the would only add to the degree of acceptance that the law can play a workplace hierarchy and obedience substantial role in ensuring that they are ostensibly there to membership control and alleviate. On the other hand, they participation by regulating the are also economic organizations democratic behaviour of trade that, to win better working and unions. social conditions for their members, Others have maintained that the must depend on discipline, present level of legal supervision is solidarity, and institutional loyalty. sufficient to ensure that unions are Unions must have power, internally fair and responsive to their and externally, to exercise their role members, although many of the in the workplace and in society. powers presently possessed by the Otherwise, the employment bargain courts should be removed and would be wholly one-sided. placed with labour relations boards. There is little debate among This view is premised on the belief observers of contemporary that unions, as essentially private industrial relations that unions can organizations, should be permitted only fulfil their social and economic the greatest degree of autonomy mission if they are democratic possible that is consistent with institutions. The focus among labour ensuring that their membership is lawyers and legislators, however, entitled to fairness in matters has been on the degree of concerning both collective intervention that the law should agreements and internal affairs. 30 JUST LABOUR vol. 1 (2002), 16-30

Beyond providing the basic governmental organizations, such as requirements for internal fairness, it corporations, political parties, and argues that the sinews for union religious institutions. The most democracy must come from the serious obstacle to greater creativity and maturity provided by democracy within Canadian trade the experience of dynamic industrial unions appears to lie not in the relations. pattern of their behaviour, nor in The approach in Canada has been any particular restrictions in their to accept the latter argument. constitutions, but in the generally Unions have been permitted a low participation of the membership significant degree of autonomy, in the political life of unions, except tempered only by the requirements, in times of conflict or crisis. In the sometimes expressed by legislation, world of representative institutions, but largely by the courts and the this is a common enough problem. common law, that they respect their The question becomes whether the constitutional procedures, that their law can realistically do more than members have the right to be heard assure that the pre-requisites of in internal proceedings, and that fairness are provided, leaving the their rules be free of unfairness and quality of democracy to emerge discrimination. For reasons that may through the life experiences of the or may not be peculiar to Canada, organization itself. this path has assisted in shaping a trade union movement that it would Note: be fair to characterize as being A longer version of this paper appeared in: (2000), 21 Journal of Labor Research, 37-63. democratic in its character, civic in its vision, responsive to its membership, and increasingly more representative of Canada’s social diversity in its leadership. Any serious political judgement in the future as to whether the degree of statutory intervention should be increased ought to be determined with the following three tests in mind: (i) the efficacy of the current level of judicial and labour board supervision; (ii) the continuing ability of trade unions to provide democratic self-regulation; and (iii) the level of legislative regulation on the internal affairs of other socially influential non-