Problems of Legislation Relating to Collective Bargaining

Extract

The purpose of this paper is to examine some of the main problems involved in collective bargaining legislation and to indicate how they have been dealt with in Canada. The study is confined mainly to provincial legislation, since the Dominion Industrial Disputes Investigation Act deals with conciliation machinery, and not collective bargaining, and the validity of the Dominion Trade Union Act has been strongly impugned by the courts. The discussion will be -confined to five main headings: (1) the right to organize; (2) the right to bargain collectively; (3) the bargaining unit and the bargaining agency; (4) the extent of the duty to bargain; (5) administration.

The Right to Organize. The first main problem is the question of the right to organize. I use the term “right” advisedly, for lack of a better. The developed liberalism of modern times does not seek to define the rights of citizens in terms of strict indefeasibility. Everyone, at common law, has always been free to organize or join a trade union, so long as its purposes did not violate the criminal law. Nova Scotia and Saskatchewan declare that it shall be lawful for employees to organize and join a trade union; Ontario substitutes the term “collective bargaining agency” for “trade union,” the former term, by definition, excluding company unions “dominated, coerced or improperly influenced by the employer.” The rest of the provinces recognize the right of both employers and employees to organize for any lawful purpose. In connection with this latter group, if the word “lawful” means not criminal—then it is superfluous; if it means lawful, as not being in restraint of trade, the declaration is of little value, since most trade unions have objects, such as strikes, pickets, etc. which are in restraint of trade.