The Quebec government is considering adopting legislation that would allow union members to opt out of contributing financially to union activities that “are not directly related to labour relations,” marking the second time in months the provincial government is trying clamp down on the labour movement.
Last May the Quebec government assented Bill 89, An Act to give greater consideration to the needs of the population in the event of a strike or a lock-out. The new law gives the Quebec Minister of Labour sweeping new powers to curb and limit strikes or lockouts by broadening the notion of essential services and granting the labour minister the power to refer labour disputes to an arbitrator. Critics have described the new law as a direct frontal attack on the constitutionally protected right to collective bargaining.
Now the Quebec government is seeking to curb trade unions from mounting legal challenges. Quebec Premier François Legault has denounced the involvement of some unions in legal cases, notably the challenge to Quebec’s secularism law before the Supreme Court of Canada. The Fédération autonome de l’enseignement is a key appellant. “There is a problem, and we want to tackle it,” said Legault recently on the popular French-language television show “Tout le monde en parle.”
According to a document obtained by an opposition party, the Quebec government is considering using the opting-out formula if union dues were used to finance “legal action before the courts,” participate in “social movements not directly related to member representation,” conduct advertising campaigns, or used to make donations to charitable organizations.
The president of the Quebec Federation of Labour (FTQ), Magali Picard, denounces the effort as an attempt to “muzzle” unions. “Are they going to say the same thing to the Quebec Council of Employers? Are they going to say the same thing to the chambers of business? Why should unions be the only ones not allowed to take a stand?” she asked.
There is little doubt if the Quebec government forged ahead, there will be legal challenges.
Most jurisdictions in Canada do not allow union members to fully opt out of paying union dues or financial contributions covered by collective agreements. The Rand Formula, the prevailing legal principle across most Canadian provinces, requires all employees covered by a unionized workplace to pay union dues regardless of membership status.
In 1991, the Supreme Court of Canada unanimously ruled in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 that public sector unions can use mandatory fees for both bargaining and explicitly political lobbying. “An opting‑out formula could seriously undermine the unions’ financial base and the spirit of solidarity so important to the emotional and symbolic underpinnings of unionism,” held the SCC.
More recently, the nation’s highest court held that strikes are a constitutionally protected form of freedom of association.
In the United States, it is an altogether different story.
In 2018, in Janus v American Federation of State, County, and Municipal Employees, Council 31, the US Supreme Court held in a 5-4 decision that requiring public sector employees to pay mandatory agency fees violated the First Amendment’s guarantee of freedom of speech.
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