Broader-based and Sectoral Bargaining Proposals in Collective Bargaining Law Reform: A Historical Review

Labour legislation regulating Canada’s private sector has incorporated forms of broader-based or sectoral certification and bargaining (BBB) in varying degrees for decades, particularly in British Columbia and Quebec. However, BBB had not been the subject of significant post-war labour law reform discussion until the 1990s. This decade saw a wave of interest in introducing BBB arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later that decade. In none of these instances were BBB proposals or recommendations adopted. Since then, and until the Changing Workplaces Review (CWR) of Ontario’s Labour Relations Act (OLRA) and Employment Standards Act (ESA) commenced in 2015, private sector BBB had not been an important reform issue. BBB gained significant attention in the CWR process but was less prominent in the subsequent labour law reform processes undertaken in Alberta and British Columbia. None of these reviews have resulted in substantial BBB amendments to the labour legislation. This article traces the history of BBB as an issue in labour law reform exercises across jurisdictions in English Canada from the late 1980s to early 2019, examining the context in which these issues arose, identifying key BBB proposals, and challenges to these proposals. It concludes with an analysis of the failure of efforts to incorporate BBB proposals into labour legislation, and an assessment of the key challenges to adopting significant BBB reforms in the future

Workers’ Boards: Sectoral Bargaining and Standard-Setting Mechanisms for the New Gilded Age

This article explores the potential of sectoral standard-setting models (often referred to as “wage boards” or “workers’ boards”) as a solution for contemporary workplace issues, which existing labor relations and minimum standards regulatory systems continue to struggle to address. This argument, the article examines three historical statutory systems of sector-based minimum workplace standard-setting established in the early 20th century as a response to unacceptable wages and working conditions: the British Wages Council system, the Canadian Industrial Standards Act, and the US Fair Labor Standards Act. The article applies the conceptions of fairness identified in Seth Harris\u27s study of the origins of the Fair Labor Standards Act to analyze the three systems and offers a three-step approach to constructing a sectoral workplace standard-setting mechanism. This paper contributes to the ongoing discourse on worker representation and workplace standards by offering a conceptual starting point for designing a sectoral workplace standard-setting mechanism. The article highlights key design decisions and alternatives and maps out essential interrelated considerations, providing valuable insights for policymakers and stakeholders seeking to improve worker representation and workplace standards

Wage Boards for the 21st Century: Revisiting Sectoral Standard-Setting Mechanisms for the Workplace

As existing labour relations and minimum standards regulatory systems have continued to struggle to ensure acceptable worker voice and workplace standards, attention has increasingly turned to whether broader-based or sectoral approaches can offer solutions. Broader-based or sectoral approaches can be understood as falling into three categories of models: multi-employer, juridical extension, and sectoral standard-setting models. A key difference among these is that the first two categories involve not only collective representation of workers but also collective bargaining; the third model – sectoral standard-setting – involves a form of collective representation, but does not involve collective bargaining, which is characterized by compelled recognition, a duty to bargain in good faith, and a duty of fair representation borne by employee representatives. Instead, sectoral standard-setting models involve forms of negotiation and consultation

Structuring Reality So That the Law Will Follow: British Columbia Teachers\u27 Quest for Collective Bargaining Rights

The British Columbia Teachers\u27 Federation (BCTF), representing all public elementary and secondary school teachers in the province, is one of the largest and most powerful unions in British Columbia. BCTF has always sought formal rights to full-scope collective bargaining, and unrestricted access to striking at the school board level. It has employed a sustained, sophisticated series of strategies to achieve these objectives, quickly adapting to changing political and legal environments. The BCTF has had significant success in advancing its labour relations agenda, establishing a different trajectory for teachers than for most public sector workers in Canada. This article maps BCTF\u27s labour relations strategies and agenda against the backdrop of the political and legal environments, from BCTF\u27s inception to present-day. It argues that, as a result of these factors, BC teachers have experienced a different labour relations history than most public sector workers. Drawing on and adapting Rose\u27s (2004) eras of public sector labour relations, this article identifies the following eras of BC teacher labour relations: an era of exclusion (to 1982), resistance and revitalization (1982-86), expansion (1987-93), reform (1994), reprieve (1994-2001), restraint and consolidation (2002-2007), and reaching an era of realignment beginning in 2007

Exploring Sectoral Solutions for Digital Workers: The Status of the Artist Act Approach

Digital workers have not had significant success in securing conventional forms of collective workplace representation, particularly statutory collective bargaining. This article examines an established sectoral bargaining statute, the Status of the Artist Act (SOA), as a possible model for collective bargaining legislation that is better suited to regulating digital work than the Wagner Act model (WAM) of labor legislation. Key features of the WAM labor legislation pose significant barriers for digital worker organizing. First, the necessity for applicant unions to demonstrate a threshold level of support among workers requires applicants to accurately estimate the number of workers in the proposed unit. This is difficult given that digital workers tend to be geographically dispersed and isolated. Second, the WAM is oriented towards single-employer, single location, enterprise-level bargaining units. Fragmented organization is ill-suited to the organization of digital work. Recent certification cases involving Uber, Lyft and Foodora illustrate the difficulties of these WAM features for digital worker organizing. The SOA, applicable to self-employed professional artists, shares much of the WAM framework. However, it departs from the WAM in crucial ways, designed to overcome collective bargaining barriers for the arts sector. Key differences include: no requirement for workers to establish employee status; a broader approach to appropriateness relieves against fragmented, small, units characteristic of WAM; demonstration that the applicant is the “most representative” association rather than majority support means certification does not turn on the applicant’s ability to accurately determine the number of workers in the proposed unit; limited challenges to representativeness; and, collective agreements provide a minimum floor, facilitating representation of heterogeneous workers in a unit. Organization of work and workers in the digital work and arts sectors share important similarities including the “gig” nature of the work and the geographic dispersion of workers. This article suggests that the structural similarities between digital and arts work, reflected in the SOA framework, offer guidance for a more effective statutory collective bargaining system for digital workers

Whither Wagner? Reconsidering Labor Law and Policy Reform

Although Canada and the US have both adopted labor relations legal frameworks based on the Wagner model, labor relations has played out very differently in the two countries. This is particularly evident in the countries’ divergent trajectories of changing union density. In recent decades the US has experienced a steep, sustained decline in unionization, while Canadian unionization has seen a slow decline and overall stagnation in union density. This prompts the question addressed in this paper: will the labor relations experiences of these closely linked nations continue to diverge, or will Canada’s labor relations landscape come to resemble that of the US? This paper focuses on two alternative, but related, perspectives for explaining the different labor relations experiences of the US and Canada, offering insights into their likely futures: John Godard’s Historical-Institutionalist perspective, and Harry Arthurs’ “Real” Constitution perspectives. Past and current efforts to introduce right-to-work measures (defined broadly) and the labor movements’ recent countervailing efforts are considered in light of these perspectives. This paper concludes by considering which perspective is likely to be borne out in the context of contemporary events and, specifically, whether these attempts are likely to succeed. In short, despite the protection offered by Canada’s juridical constitution, the question remains whether its “real” constitution has undergone greater, countervailing change reflecting a fundamental shift in the nations’ norms and values such that labor law will follow

No Right (To Organize) Without a Remedy: Evidence and Consequences of Failure to Provide Compensatory Remedies for Unfair Labour Practices in British Columbia

Employees and unions encounter significant risks during union organizing and often see their efforts thwarted by employers. Labour law regimes attempt to minimize these risks by rendering unlawful a number of unfair labour practices (ULPs) employers can use to prevent unionization. But labour relations boards (LRBs) in Canada often avoid awarding full compensation for the harm ULPs cause, leading employers to still view ULPs as advantageous courses of action with only moderate associated costs.The author argues that this problem can be solved or greatly mitigated without the need for formal reforms, LRBs rather must come to embrace the full range of remedial powers they already hold. Through an empirical analysis of cases brought to the British Columbia Labour Relations Board, the author shows how LRBs systematically choose to avoid compensating particular categories of harm, whether to individual or collective employee interests, or to the interests of the union. This failure is due to a misapplication of the principle of voluntarism, which seeks to have labour relations systems assist the voluntary resolution of labour disputes between unions and employers. By not requiring full compensation, LRBs attempt to maintain employers’ voluntary commitment to the labour relations system, but doing so inevitably causes the system to work against employees and unions. Voluntarism is not appropriate during the union-organizing period, when a union has yet to be established, and when it is thus vital that the rights of employees and unions be enforced and adequate remedies provided

Protected Concerted Activity and Non-Unionized Employee Strikes: Worker Rights in Canada in the Time of COVID-19

During the pandemic employees in the US have engaged in a wave of strikes, protests, and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada, which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and compares the situation of, and consequences for, three categories of workers engaging in a strike over fears of workplace safety: unionized employees, non-unionized employees, and non-employees, such as independent contractors under the NLRA compared to under the Ontario Labour Relations Act (OLRA), as generally representative of Canadian labour legislation. In the final section, this article considers how a statutory provision similar to the NLRA protected concerted activity provision might be incorporated into Canadian labour legislation such as the OLRA. It also considers some more fundamental questions that such changes might prompt policymakers to reconsider, including: the focus of our statutory system on “organizing” collective action to the exclusion of “mobilizing” collective action, and questions about the potential role of minority unionism in our labour legislation system

Exploring Sectoral Solutions for Digital Workers: The Status of the Artist Act Approach

Digital workers have not had significant success in securing conventional forms of collective workplace representation, particularly statutory collective bargaining. This article examines an established sectoral bargaining statute, the Status of the Artist Act (SOA), as a possible model for collective bargaining legislation that is better suited to regulate digital work than the Wagner Act model (WAM) of labor legislation. Key features of the WAM labor legislation pose significant barriers for digital worker organizing. These include requirements to: demonstrate employee status, accurately estimate the number of employees in the proposed used, the requirement to demonstrate sufficient support. The WAM is oriented towards single-employer, single location, enterprise-level bargaining units. This is ill-suited to the organization of digital work. Recent certification cases involving Uber, Lyft, and Foodora illustrate the difficulties of these WAM features for digital worker organizing. The SOA, applicable to self-employed professional artists, shares much of the WAM framerk, but it departs from the WAM in crucial ways designed to overcome collective bargaining barriers for the arts sector. Key differences include: no requirement for workers to establish employee status; a broader approach to appropriateness relieves against fragmented, small, units characteristic of the WAM; a “most representative” standard instead of majority support means certification does not turn on the applicant’s ability to accurately determine the number of workers in the proposed unit; limited challenges to representativeness; and, collective agreements provide a minimum floor, facilitating representation of heterogeneous workers in a unit. Organization of work and workers in the digital work and arts sectors share important similarities including the “gig” nature of the work and the geographic dispersion of workers. This article suggests that the structural similarities between digital and arts work, reflected in the SOA framework, offer guidance for a more effective statutory collective bargaining system for digital workers