On 'Right to work' and the RAND formula

'Right to work' is right to work for less

as published in the Financial Post

Conservative Member of Parliament Pierre Poilievre is right: Judge Ivan Rand did rule that employees should "take the burden with the benefit" ("Unions ignore the Rand formula," Feb. 6 article posted below).

And Rand's formula does oblige workers who benefit from collective agreements and union representation to pay for those benefits. But that makes sense: Why should only some of the people in a workplace pay for something everyone in that workplace benefits from?

What Mr. Poilievre is wrong about is that workers would somehow benefit if the Conservative government did away with that formula. The Public Service Alliance of Canada (PSAC) is legally bound to represent all employees covered by our collective agreements, which is why all employees pay dues. Taking that away would destroy our ability to effectively represent workers and maintain the collective agreements they rely on.

That would seem to be Mr. Poilievre's objective. This is an attempt to import an American idea designed to undermine the rights of the people unions represent.

Eliminating mandatory dues has meant lower wages for both union and non-union workers in the U.S.'s "right to work" states - US$1,540 a year less than similar workers in other states. Is this what Mr. Poilievre wants for his constituents in Nepean-Carleton?

Mr. Poilievre argues that Judge Rand never contemplated the sorts of political action that unions take part in when he came up with his famous formula. He also probably never contemplated mobile phones, but it doesn't mean unions should not use them either. The fact is Canada is a more complicated place now and employee wages and working conditions are also affected by the courts, human rights commissions and indeed Parliament.

And a union that cannot act on behalf of its members before these bodies isn't going to be very effective at the bargaining table either.

Just last week, the PSAC won a major federal court victory for all working families because we stood up to the government, as an employer, for refusing to accommodate a worker who needed fixed shifts so she could arrange childcare.

The PSAC used the Canadian Human Rights Act to win pay equity adjustments plus interest for more than 200,000 current and former workers in the federal government, the government of the Northwest Territories and Canada Post.

PSAC's "Black Paper" campaign won health and safety protection under the law for federal government workers. Just imagine your working day without the right to a safe and healthy workplace. And there are so many more examples.

None of these would have been possible if unions didn't have the finances necessary to advocate for their members - not just at the bargaining table, but also before Parliament, human rights tribunals and the courts.

Is that what Pierre Poilievre wants for his constituents (which include, by the way, about 5,400 PSAC members)? If so, perhaps they should be able to opt out of paying some of their taxes - possibly an amount equivalent to what the MP for Nepean-Carleton has spent railing against the Rand formula.

Robyn Benson is the national president of the Public Service Alliance of Canada.

Unions ignore the Rand formula     If they don’t follow it, why should anyone?

Some people would have time to practise what they preach, if they did not spend every waking hour preaching, as The Dallas Morning News wrote in 1891.
Such is the case when union leaders preach, but don’t practise, the so-called “Rand formula.” Its namesake, Justice Ivan Rand, crafted it in his arbitration of the 1946 Ford Motors strike in Windsor. It imposes compulsory union dues on all employees in a unionized workplace, which labour leaders have turned into a $4-billion-a-year industry.
Now that northern American states are joining other U.S. and European jurisdictions in making dues voluntary, union bosses here are going apoplectic at the prospect that Canadian workers might now demand the same free choice. So they have made Rand into Moses, and his formula into the 11th commandment.
Well, kind of. But not really.
The truth is that, other than the guaranteed dues, union leaders actually don’t like the Rand formula. They have appropriated vast financial powers that the formula never authorized and imposed a form of forced association that it specifically forbade.
For example, according to its 2011 financial statements, the Public Service Alliance of Canada (PSAC) spent $2.8-million on “political action and campaigns”, $3.8-million on “participation in the labour movement” and $247,715 on a “social justice fund.” That is the spending of one union. There are another 777 unions in Canada, who can force workers to fund politics.
By contrast, Rand’s formula only required employees to fund the bargaining and administration of the collective agreement — nothing more. “I consider it entirely equitable then,” wrote Rand, “that all employees should be required to shoulder their portion of the burden of expense for administering the law of their employment, the union contract [the collective agreement].” His decision used the term “bargaining agent” six different times to refer to the union, which clearly delineated its raison d’être: bargaining — not politics.
An employee was only to pay the union if and when benefiting from the union’s agreement. “My award is a check-off compulsory upon all employees who come within the unit to which the agreement applies. It shall continue during the period of the contract.” Judge Rand ruled that workers would “take the burden along with the benefit.”

But union spending on political and social causes brings the employee no benefit — only burden. What “benefit” did Jewish health care workers gain when the Canadian Union of Public Employees forced them to fund an Israel boycott? Does a federal public servant (whose job literally depends on a united Canada) “benefit” from his union’s recent support of separatist parties in the last Quebec election? These are questions for workers to answer. It is their money. Presently, they have no choice but to pay for causes that have nothing to do with their workplaces.
If union leaders want to fund ideological causes, they should raise voluntary donations like every other group in civil society. Groups like the Canadian Cancer Society advance unassailable causes. Yet, their lobbying and advocacy come from voluntary donations.
Likewise for unions in Europe, where six years ago in the Evaldsson case the European Court of Human Rights ruled that forcing a worker to fund political causes against his conscience, and without his individual consent, violated his human rights.
It is also a violation of human rights to force someone to join a union, according to Judge Rand: “it would deny the individual Canadian the right to seek work and to work independently of personal association with any organized group.”
Yet read Article 4 of the National Organized Workers Union contract with ABC Climate Control Systems: “All employees who are presently employed by the Employer must, as a condition of employment, become and/or maintain their Union membership in good standing.”
Agreements like this are common. They violate the Rand formula and, incidentally, the United Nations Declaration of Human Rights, which provides that “No one may be compelled to belong to an association.”
In its 2006 ruling Sørensen and Rasmussen v. Denmark, the European Court of Human Rights also ruled that forced union membership contravenes freedom of association. “Accordingly, Article 11 [freedom of association] must also be viewed as encompassing a negative right of association or, put in other words, a right not to be forced to join an association.”
In these respects, European courts are more faithful to Judge Rand than are his purported champions in Canada’s labour movement. Which begs the question: If union leaders refuse to follow the Rand Formula, then why should anyone else?

Pierre Poilievre is a Conservative Member of Parliament for Nepean-Carleton.
http://opinion.financialpost.com/2013/02/05/unions-ignore-the-rand-formula/