Effect of SFL on Pvt Sector If SCC continues to rely on intl norms

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, timeliness).

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 continued Lance Compa at Cornell says it is a fair “trade- off;” 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 standard 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 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.

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