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Tim Hudak, leader of the Progressive Conservative Party of Ontario, held a press conference Jan. 13 2014, at the Ontario legislature to talk about his plans for employment. (Fred Lum/The Globe and Mail)
Tim Hudak, leader of the Progressive Conservative Party of Ontario, held a press conference Jan. 13 2014, at the Ontario legislature to talk about his plans for employment. (Fred Lum/The Globe and Mail)

Globe editorial

The wrong formula and the Rand formula Add to ...

Ontario Progressive Conservative Leader Tim Hudak last week wisely backed away from a plan to campaign on introducing “right to work” legislation, and to alter a long-standing Canadian compromise known as the Rand formula. As set out by Supreme Court Justice Ivan Rand in 1946, the formula says that in a unionized workplace, employees are free to join or not join the union – but either way, they must pay union dues. That’s because every worker in a union shop, member or no, benefits from efforts made by the union in contract negotiations. The formula is meant to prevent anyone from getting a free ride.

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Making union dues optional in unionized workplaces would have been disastrous for organized labour – surely part of the Conservatives’ goal. But it also would have been unworkable. The Rand formula isn’t perfect, but Mr. Hudak’s alternative was incoherent. Some of his own candidates publicly pushed back against it.

But other parts of the PC Party’s white paper on flexible labour markets, released in 2012, deserve serious consideration: namely, questioning why union members should be forced to pay for union activities not directly related to collective bargaining.

The white paper cites the example of the Canadian Union of Public Employees, which has used dues to fund campaigns calling for a boycott of Israeli academic institutions, protesting the World Trade Organization and agitating for a ban on bottled water. These causes aren’t even remotely related to collective bargaining.

The Supreme Court of Canada delved into this issue two decades ago. In the 1980s, Mervyn Lavigne, a community college teacher, challenged how his union dues were spent. He’d opted out of the Ontario Public Service Employees Union, but was still required to pay dues, as per the Rand formula. His objection wasn’t to paying; it was to how some of his dues were being spent outside the workplace, on causes he disagreed with. He argued this violated his Charter right to freedom of association. The amount of money involved was marginal, but the principle is not.

Mr. Lavigne won in the court of first instance and lost at the Supreme Court, which said that unions have latitude in how their money is spent. Mr. Hudak thinks it is time for Ontario to revisit part of that story, and he’s right. There are real questions about how union dues, especially in the public sector, are spent on causes such as political advocacy. The next government needs to revisit provincial labour law. It’s not 1946 any more.

Editor's note: An earlier version of this editorial incorrectly said that Mervyn Lavigne’s 1980s lawsuit objecting to a portion of his union dues going to various political causes was successful at the Ontario Court of Appeal. In fact, he won earlier, in the court of first instance.

 

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