For years the term “Right to Work” state has been synonymous with jurisdictions in the American South, where unions have traditionally been weak and unwelcome. Few would have believed that the home of the unionized American auto industry, Michigan, would also one day become a right to work state. But that has just happened. Winds of change are sweeping the American labour landscape. Could these winds shift north and propel Ontario to become a right to work province?
In a word: Yes. The leader of the Province’s official opposition, Progressive Conservative Tim Hudak, has recently proposed just that. With the current Liberal government holding a minority of seats in the Legislative Assembly, a change of government may be around the corner.
What, then, would the passage of “Right to Work” legislation mean for Ontario workplaces?
Notwithstanding its misleading brand, the “Right to Work” simply means the right not to pay union dues. Currently, unionized employees must pay dues regardless of whether they join or support the union that represents them. Right to work legislation would likely allow employees to opt-out of paying union dues, while unions would still be required to represent all the employees covered by their collective agreements.
We predict the passage of “Right to Work” legislation in Ontario would result in the following;
1. Unsuccessful Constitutional Litigation
Unions will ask the courts to strike down such legislation on the grounds that it interferes with the constitutionally protected right to collective bargaining, which is grounded in the freedom of association protected by the Charter. This argument will likely fail since the Supreme Court of Canada has clearly stated that the freedom of association also includes the freedom not to associate. We suggest that a law that allows employees to opt-out of funding an organization with which they have been forced to associate is perfectly consistent with the freedom not to associate. Before striking down any law that allows employees to opt out of paying union dues, the courts will have to conclude that the forced payment of dues is demonstrably justified in a free and democratic society. We doubt this would happen.
2. Less Union Organizing
If workers become free to decide whether to pay union dues, many will opt-out. Revenues will decline and unions will have to cut back. Organizing costs will be the first on the chopping block as unions are forced to engage in a painful cost-benefit analysis.
Organizing has always been a loss-leader, with significant money spent in seeking certification and negotiating a first collective agreement. Unions only begin to recover their costs once all employees start paying dues under a first collective agreement. If employees can opt-out of paying dues, less revenue will be recovered from new bargaining units.
Successful organizing campaigns usually produce a large group of anti-union employees. Many of these employees will opt-out of paying dues.
3. Downloading to Local Bargaining Units
As unions downsize in the face of declining revenue, greater responsibility will be placed on local workplace representatives. Some of these representatives will have the knowledge and skills to perform their enhanced roles, but most will not. Unionized employers can expect an increase in the ignorance, amateurism, and intransigence they encounter. Managing with a union will become even harder.
4. Balkanization
Acrimony and division will define unionized workplaces. Union supporters will press their apathetic co-workers to contribute dues through persuasion, social exclusion, and occasional harassment. The quality of representation employees receive will in some measure depend on whether the employee is a paid-up member of the union. The Ontario Labour Relations Board could expect more duty of fair representation complaints.
5. Diminished Political Clout
As revenues shrink, organizing declines, and service suffers, unions will be forced to invest more resources into keeping what they have. Spending on political parties and social causes will become an unaffordable luxury. It is no coincidence that changes to the status quo are being championed by the Progressive Conservative party and not the Liberals or NDP.
Conclusion
The Right to Work should be recognized for what it is: The right to opt-out of paying union dues. This right is consistent with the freedom not to associate, which has been recognized under the Charter. Legislation allowing employees to opt-out from paying dues will benefit those who see no value in union representation. Unions will lose a source of funding that they previously took for granted. They will have to shift their spending priorities away from external political action and focus instead on delivering appreciable value to the workers they represent. We doubt they will succeed. As service standards suffer and organizing declines, the long term sustainability of unions will diminish. Unions will suffer the same fate of businesses whose customers simply refuse to pay.
