The typical labor union in Canada is governed on a province by province basis. The law of the country provides that all labor and employment issues regarding workers be addressed at a provincial level, except in instances where the issues are “integral to federal work or undertaking” such as railways, interprovincial transport, banks, and airlines (Employment Law Alliance 1). Therefore, labor and employment issues are regulated at the provincial and territorial level in Canada. It follows that labor relations are different from one province to another, with each jurisdiction having separate employment standards legislation and enforcement mechanism. Different expectations regarding the representations of various unions vary depending on the area of jurisdiction. Majority of the labour unions in the country address issues regarding minimum wage, hours of work and overtime, job-protected leaves of absence, and minimum notice lieu regarding termination of employment (Employment Law Alliance 1). The demands of the various unions differ depending on the expectations in every state although the salient issues addressed are the same.

The union certification system in the country for the vast majority of employers is regulated provincially. Some jurisdictions including New Brunswick, Prince Edward Island, Newfoundland, and Labrador provide for a card-based unionization process where there are no elections as long as the Union can prove a certain level of support (Employment Law Alliance 4). In other provinces, the voting at a union level is mandatory provided the Union can show a support level ranging from 35% to 45% (Employment Law Alliance 4). The majority of jurisdictions in Canada require the election to be conducted between five to ten business days after filing the election petition (Employment Law Alliance 4). The organization of the Canadian labour unions in the majority of jurisdictions except Manitoba allow an employer to engage in the electioneering activities as long as it is reasonable. However, the law also provides for a remedial certification in the event the employer participates in threats, intimidation, or exerts undue influence in the process of obtaining a certification (Employment Law Alliance 5). Overall, the process of elections in the labour union in Canada incorporates the input of employers but limits the exercise of undue influence.

The labor unions in Canada exists on different levels, from the local workplaces to international organization. The majority of the labor unions in the country belong to a national and international organization and are organized around a particular industry or a certain occupation (“Labour Unions in Canada”). At the local level, a group of people at a particular workplace can organize with the intention of registering a union. To be granted the right to be a bargaining representative on behalf of the workers, a union has to apply for certification from the labor board at the provincial level. Union executives at the local level are in charge of supervising its daily operations. Officials known as shop stewards are also elected by union members to handle the grievances which occur at the work environment (“Labour Unions in Canada”). Before engaging in negotiations with the employer, workers elect what is known as the bargaining committee which determines the best course of action regarding the strategy to be employed in the negotiation process. The organization of the majority of labor unions in Canada begins at the local level, although different regulations vary from province to province.

Problems Canadian Members have Encountered Regarding the Duty of Fair Representation

One of the problems members of labor unions in Canada experience is a lack of concrete legal definition on the scope of fair representation.  When disputes arise between a union and its members it has proven difficult to establish a definite course of action. The Supreme Court of Canada, for example, holds that although a legal backing for equal and fair representation in the country exists, the common law for the duty of fair representation is “neither necessary nor appropriate” (Ellickson 3-4). As such, the top court bestows the responsibility of considering the validity of a complaint raised by a member of the relevant labor board. For the workers attached to the labor organizations in the country, the transfer of jurisdiction regarding hearing disputes by members to the labor boards leaves them exposed to misrepresentation. By deferring the responsibility of hearing members’ complaints to a different institution outside the legal system, the Supreme Court of Canada appears to dilute the potency of the duty of fair representation at the detriment of workers.

The Canadian legal system confers the right to arbitration to the union and takes it away from the employee. The Supreme Court in the Gagnon v. Canadian Merchant Service Guild et al. 1984 ruled that a member of a union “does not have an absolute right to arbitration and the union enjoys a considerable right to discretion” (Ellickson 6). While the courts require labor unions in the country to ensure all employees affiliated to them are fairly represented,  it significantly reduces the leverage of these employees when it comes to arbitration. Also, the ruling granted the union the monopoly of the negotiating process. Consequently, the majority of employees in the country under a certain union have their options limited given that the union has the legal backing to abandon, withdraw, or settle grievances at its discretion (Ellickson 6). Individual employees are forced to rely on the competence and goodwill of their unions to fairly represent them. By taking away the absolute right to arbitration from employees, there is no guarantee that the interests of every employee are protected.

The collective nature of the representations undertaken by a labor union on behalf of its members means that some disputes individuals might have with their employers are not considered. The Supreme Court ruling inferred that a particular union is allowed to make certain mistakes in its decision whether or not to take up a particular case presented by a member. The current jurisprudence acknowledges that the labor union could be wrong, or even negligent in its decision to abandon or dismiss a particular case and still not contravene the duty of fair representation (Ellickson 7). Labour unions, however, have the moral obligation to ensure that they select cases in a manner that portrays honesty, is not arbitrary, discriminatory, or made in bad faith (“Duty of Fair Representation” 4). The legal system understands that a particular labor union could decide that not supporting a particular case is in the best interests of the group (“Duty of Fair Representation” 4). When a union undertakes such a decision, it weakens its ability to fight to obtain a fair hearing.

Summary of the Concept of the Right to Work Act in the United States

The National Right To Work Act (NRTWA) is legislation which empowers workers in the United States the right to decide whether or not a labor organization deserves their financial support. The law, proposed by Republican lawmakers in 2017, seeks to repeal the traditional forced-dues statues in the federal statutes (Higgins). The right-to-work decree changes the provisions of the National Labour Relations Act (NLRA) which regulates employment conditions in the private sector in the U.S. Additionally, the new amendment also seeks to modify the Railway Labour Act (RLA) which is concerned with unions within the transportation industry in the country. Both changes outlaw the “security clauses” which either compel the employees in a workplace to join a union or pay a regular fee as a condition of employment (Higgins). The legislation seeks to repeal the provisions in both the RLA and the NLRA which legalize the action of sacking an employee if they refuse to join a union (“National Right to Work Act”). The law is keen to overcome the existing status quo which tends to force workers of a particular organization to seek representation from a union, arguing that American workers should be afforded the choice of whether or not they need the representation of the unions.

The right-to-work legislation is also keen to restore the freedom of employees curtailed by the federal labour laws. The law seeks to quash the forced dues payment which employees are obligated to pay under the RLA and the NLRA. Additionally, the current rules prohibit employees from bargaining with their employers on their behalf. The right-to-work legislation repeals the old provision, and the requirement forcing employees to be only represented at the negotiating table by an exclusive bargaining agent sanctioned by the federal government (“National Right to Work Act”). Complaints filed at the National Labour Relations Board point to the systematic abuse of the bargaining monopoly by the union officials. As such, the new law intends to correct the mistreatment and misrepresentation of the workers by their unions and the forced-dues provision enacted in law.

Personal Position on the Fairness of Canadian Unionization and Adoption of the Right To Work Legislation

The Canadian unionization process is not fair to all members. The precedence set by the Supreme Court in the Gagnon v. Canadian Merchant Service Guild et al. 1984 empowered the unions in Canada to decide which arbitration disputes they were willing to offer representation at their discretion (Ellickson 6). Additionally, labour unions only undertake to represent workers’ grievances which are part of the collective interest of the whole union. The legal system in the country removes the absolute power from employees to negotiate with the employers and places the bargaining responsibility on the unions. As such, individual demands of certain workers, especially the minority who form a part of the larger organization, are likely to be ignored.

The right to work legislation as proposed in the neighbouring United States intends to repeal traditional provisions which oblige workers to be represented by a union, revokes the mandatory union-fees, and promotes the sense of individual bargaining. My position is that as a country, we should adopt the right to work legislation as it better protects the rights of individual workers in a country. Additionally, it forces the unions to improve their services and representations of the workers given that they lose the legal backing previously enjoyed before enactment of the amendment. Eventually, employees choose whether or not to join a union, increasing competition among various bodies charged with representing workers hence translating to enhanced service delivery.