The members of the National Assembly have begun looking into a bill aiming to take into account the new reality of teleworking by modifying those provisions of the Labour Code dealing with replacement workers during a strike or lockout. This modification clearly aims to rule out the interpretation presented by the courts in the context of the dispute at the Journal de Montreal, according to which those provisions do not cover replacement workers outside of the establishment affected by the strike or lockout.
In North America, only the labour codes of Quebec and British Columbia systematically prevent recourse to replacement workers during labour disputes.
Anti-scab provisions (to use the union terminology) were originally adopted with the explicit intent of preventing violent altercations near picket lines. This justification is not applicable in the case of teleworking. For example, if the Journal de Montreal used The Canadian Press instead of the Quebecor-owned QMI Agency, no one would protest.
More generally, when we look at the way things work elsewhere in the world, when we listen to workers whose rights are being violated, we must face facts: the Labour Code must be revised down to its very foundations, rather than merely modifying the definition of replacement workers.
The ability to join a union stems from the most basic principle of freedom of association. It is altogether rational for workers, and particularly those who can be easily replaced, to want to join forces to increase their bargaining power when it comes time to negotiate the terms and conditions of employment.
In short, union representation could not be more legitimate when it is the fruit of voluntary contractual agreements between employees. But that’s where the shoe pinches when you look into the Quebec Labour Code. Several of its provisions in fact violate this fundamental principle of freedom.
For one thing, the law allows the adoption of clauses within collective agreements that force all employees concerned to belong to the union, under penalty of losing their jobs. Such clauses are in place in nearly three-quarters of unionized workplaces in Quebec.
The so-called “Rand formula” provision also forces all employees in a unionized workplace, whether members of the union or not, to pay union dues. This obligation is justified by the fact that even non-unionized workers will benefit from the terms and conditions of employment negotiated by the union. But those union dues also serve to fund various ideological or social causes that have no direct connection to the representation of the workers.
What is little appreciated, even among generally well-informed employers or commentators, is that such unjust measures are absolutely unusual by the standards that prevail just about everywhere else in the developed world.
Indeed, a recent Montreal Economic Institute publication on this subject (“The Quebec unionization model: correcting the anomaly“) illustrates that workers’ freedom of association — and of non-association — is far better protected in the United States, in Europe, and in Australia than it is here at home.
For instance, non-unionized employees in the 47 member countries of the Council of Europe have no obligation to belong to a union or to pay union dues for purposes other than collective bargaining. This situation stems from two decisions of the European Court of Human Rights rendered in 2006 and 2007 in which it declared that these two mechanisms violate freedom of association.
In the United States, 22 states forbid compulsory membership and the mandatory payment of union dues. In the rest of the country, even if the law states that a collective agreement can force employees to join the union, subsequent jurisprudence has interpreted this provision as requiring only the payment of union dues to cover the costs of collective bargaining. An employee can decide not to give financial support to the union’s political and ideological activities. Employees in Australia are also not required to join a union or pay union dues.
While some people are suggesting making the Labour Code even more restrictive, our comparative analysis shows on the contrary that it is by adhering more consistently to the principle of contractual freedom that we can bring our labour laws into line with the laws that govern other free and democratic countries.
Michel Kelly-Gagnon is president and CEO of the Montreal Economic Institute. Louis Fortin, industrial-relations consultant and McGill University lecturer on labour relations, contributed to this commentary.