The Alberta Labour Relations Board has declared Alberta labour relations legislation to be unconstitutional, saying it interferes with the right of workers to be protected by unions.
The board made the ruling as it suspended an eight-month lockout by Calgary-based Old Dutch Foods. In doing so, the board agreed with an established concept that unions perform an essential function for all workers and must have the financial means to carry out their duties and functions, meaning employers should deduct the same portion of the salaries of all employees within the bargaining unit, whether they choose to join the union or not.
The principle goes back to the Rand formula, the product of a 1946 Supreme Court of Canada ruling that requires equal payroll deductions for union dues. The Canada Labour Code and most provincial labour relations acts contain provisions that uphold the Rand formula under certain conditions. However, the Alberta Labour Relations Code doesn’t have these provisions.
When the current Alberta code was implemented, it followed other jurisdictions in requiring unions to “fairly represent all members of the bargaining unit,” but it didn’t include a compulsory deduction of union dues from all employees, said the board. The code’s current language makes Rand formula union security an “objective of bargaining” rather than statutory.
Union security for Old Dutch workers was a major stumbling block in negotiations.
Referring to a Supreme Court of Canada finding in 2007 that the right to freedom of association under the Charter of Rights and Freedoms applies to the collective bargaining process, the board found the Alberta code should have provisions on the collection of union dues in order to avoid violating the charter.
“The inability of Old Dutch Foods workers to bargain collectively is linked to the absence from the (Alberta) code of a statutory Rand formula,” said the board.
“The union is responsible for all of its members and if all members reap the benefits of the union’s accomplishments, then all should contribute equally,” said James Clancy, president of the National Union of Public and General Employees, in a release.
The board ordered Old Dutch to accept the union’s last offer on union security and allow employees back to work for 30 days while negotiations resumed on other issues.
The ruling gives the Alberta government 12 months to revise the province’s labour code. Besides Alberta, the Rand formula is not yet mandatory in New Brunswick, Nova Scotia and Prince Edward Island.
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