Edinburgh When we’re not practicing “raps,” and strategizing about the best way forward in the Leith neighborhood of Edinburgh for ACORN Scotland, I’ve been thinking about the interesting features of the labor law in the United Kingdom that allow workers to build unions and win consultation rights with employers prior to achieving majorities that would provide exclusivity and access to a heightened collective bargaining process. All of which also got me thinking about similarly embedded rights that unorganized Canadian workers have as well, as established by several decisions of the Supreme Court of Canada, when they form unions in difficult circumstances especially in nontraditional workplaces, but really anywhere these days.
These rights first established in a decision called Health Services brought by our friends with the BC Government Employees Union (BCGEU) and then revisited in Fraser connected collective bargaining and the Canadian Charter of Rights and Freedoms in important ways. At an important level the decisions extended and reaffirmed for all workers various rights of association. I didn’t share some of the handwringing that the Fraser decision elicited because I was less wedded to one single regime of collective bargaining, but the Court’s failure to provide that remedy disappointed many of the old school unionist who can only imagine one way to skin this cat.
I have referred to many of these emerging rights for workers to build unions and associations as “majority unionism,” whether in the US, UK, India, or Canada, because they offer a path for us to develop new organizing models that would seek to reestablish majoritarian worker organization, rather than “minority unionism,” which our piddling union density is delivering now. I understand others use the terms differently, so let’s leave it at you say, to-MA-to, and I say tomato. The bottom line at least in Canada is that others are also starting to see in the Fraser decision greater opportunity to expand the unionization of the unorganized. That’s a good thing, and we need to fan the flames of that fire!
Alison Braley-Rattai picked up the banner in a piece in the Labor Studies Journal entitled “Harnessing the Possibilities of Minority Unionism in Canada.” It’s an academic piece so its expectations are low that anyone might actually move in this direction, but nonetheless she offers a number of ports in the storm for those of us seeking to do so.
She argues that “By expressly not requiring majoritarianism and exclusivity in order for collective bargaining rights to ‘kick in,’ the Supreme Court opened the door to the constitutional protection of minority unionism, that is, an entity legally entitled to represent less than a majority of any given bargaining unit and that is not entitled to do so exclusively.” She makes a legal argument that the decisions are contradictory by creating protections for those organizing in some occupations, like farm labor, different from many other unorganized jobs and therefore creating inequalities under the law. But, the heart of her argument is “that even minority collective representation is better than no collective representation.”
Getting a better decision in Canada or the UK or even the USA, is not a matter of a better set of facts or better lawyers, but whether or not organizers put together real organizations of workers to push forward against employers and create the political context and the pressure from the base that bends the Court to our will. Braley-Rattai realistically argues that it is hard to get institutional labor unions to provide the resources and clout to make this happen given their unwillingness to rock the boat on the very fragile bargaining position they have now.
Nonetheless, the door seems wide open, if we’re ready to finally figure out a way to push forward. In so many places this seems to be a situation where we need to organize now, and ask for permission later, remembering that action forces reactions, and no action triggers nothing at all.