Rand formula REQUIRED by the Charter!

In a recent decision of the Alberta Labour Relations Board, the Board held that the Labour Relations Code was underinclusive by failing to require Rand formula union security provisions. The failure to do so, according to the Board, violated section 2(d) of the Charter (freedom of association).

This decision follows on the seminal BC Health Services decision in 2007 which constitutionalized collective bargaining rights in Canada.

The dispute centred around the request by UFCW for a Rand formula (i.e., that all employees in the bargaining unit be required to remit dues to the trade union regardless of their membership status) in collective bargaining with Old Dutch foods. The Employer rejected the demand and forced the union on strike.

The decision of the Board in this matter is worth reading:

In light of Health Services, the refusal by ODF to agree to a Rand formula is now considered by the Board to be a failure to bargain in good faith. Even if that were not so, its failure would, given the circumstances of its conduct, be a factor in evaluating its overall bargaining conduct. In that regard the quality of its discussion of union security is relevant to this analysis. Its justification for refusing the Rand formula was not self-evident and when it moved beyond a simple philosophical concern over employees having a freedom of choice, it said its objection was based on a belief some employees would resign if forced to pay union dues and also was concerned an obligation to pay dues might create difficulties in hiring new employees. The concern some employees might resign was eventually revealed to be confined to one or two who ODF chose not to identify and its concern over the recruitment of new employees was hypothetical that reflected a tight labour market that previously but no longer existed. There was no evidence ODF had difficulties in the management of its Winnipeg plant where the collective agreement contained a mandatory check off of union dues. Nor was there evidence of any other business justification ODF had for its position.

Could there be a "business justification" that the Board would accept? What kinds of evidence would need to be lead to prove such a justification?

In my opinion, it is unlikely that any such justification could be brought. The Board's view is clear:

Now that the Supreme Court has concluded that the protection of freedom of association afforded by s. 2(d) extends to the process of collective bargaining, and that the payment of union dues has been recognized as part of the freedom of association, the obvious conclusion is that the continued absence from the Code of a statutory Rand formula is a violation of s. 2(d) that can only be remedied by overnment action. It follows that the inability of the ODF workers to bargain collectively is linked to the absence from the Code of a statutory Rand formula. The Union has demonstrated to our satisfaction that this absence is solely attributable to government and is a violation of the fundamental right of these workers under s. 2(d) right to bargain collectively

There you have it. We are a long way from Lavigne, aren't we?

I imagine this is not the last we have heard on this case. Do you think the Board made the right decision? What about the argument that if there is a freedom to associate, there is a corresponding freedom not to associate?