Yves Faguy speaks with York University law professor Dr. David Doorey about needed reforms to our employment and labour laws.
Bonus Episode presented by CBA National, After the pandemic: Protecting the workers of the future, Ep 8
Yves Faguy speaks with York University law professor Dr. David Doorey about needed reforms to our employment and labour laws.
In this month’s episode, we talk with Dr. David Doorey about the impact of the gig economy on workers’ rights, legislative efforts to protect autonomous workers, how the courts have fared in shaping our laws in Canada, and the challenges ahead for organized labour. Doorey also shares his thoughts on how a Joe Biden presidency might affect workers in Canada.
Dr. David Doorey is an Associate Professor of Labor and Employment Law at York University in Toronto. His research and writing in the areas of Canadian and comparative labor and employment law, industrial relations, labor and the environment, corporate social responsibility and global supply chains Professor Doorey’s book The Law of Work is a leading law text used in universities and colleges across Canada. His blog Canadian Law of Work Forum, which he started in 2008, has been a frequent recipient of the Canadian Law Blog Award for top law blog in Canada. You can follow him on Twitter @TheLawofWork.
To contact us (please include in the subject line ''Podcast''): national@cba.org
Yves Faguy: You are listening to the Canadian Bar Association National Magazine. Hi, I’m your host Yves Faguy and the Editor-In-Chief of CBA National Magazine. Welcome to After the Pandemic, where we discuss emerging issues in law in a world transformed.
Many of the rights enjoyed by workers in Canada today from minimum wages to workplace safety standards and collective bargaining rights were won last century. Our employment and labour laws were in fact designed to respond to problems faced by a workforce facing very different challenges than it does in today’s increasingly global and digital economy.
And over the past few months, the pandemic has highlighted some uncomfortable truths, namely that it’s perhaps time to rethink worker protections so that they help not only people with standard and normal jobs but those working in the gig economy. The question is do we need to create new employment categories and new rules around organized labour, for example, that are more fit for purpose in this economy.
This month on the podcast we’re discussing employment and labour law with York University law professor David Doorey. He has written extensively on a range of topics in Canadian and comparative labour and employment law, and industrial relations.
He is the author of the Law of Work taught in universities and colleges across Canada, the second edition I believe is now available and he is a regular commentator on developments in his field on his award-winning Canadian Law of Work Forum blog which he started in 2008. So we’re really pleased to have him here today. Thank you for taking the time to speak with us. Welcome, David.
Dr. David Doorey: Thank you very much. Thanks for having me.
Yves Faguy: David, help us first with the big picture. We hear a lot about how employment and labour laws are stuck in the past. So how would you describe the challenges we’re facing today and has the pandemic shown a light on some of these lingering issues that we’re going through?
Dr. David Doorey: OK. Well, that’s a good opening question and I’m going to take a bit of time to answer it because I think it probably sets up some of the issues we’re going to talk about today. And I’m going to leave the question of the pandemic aside for the moment and come back to that if that’s OK.
Yves Faguy: Sure, no problem.
Dr. David Doorey: If you begin with the observation that virtually all of the laws that we use to regulate work today were designed in the 20th century to address 20th-century problems. Now many of those problems remain today obviously but there’s new problems and some of the old problems have evolved and so we’re talking about the entire range of legislative standards that are designed to protect vulnerable employees.
So, you know, we’re talking about minimum employment standards, health and safety laws, workers comp, unemployment insurance and so forth, as well as collective bargaining legislation, OK. So if you trace the origin of all of those types of statutes what you find is that each of them came about as a government response at a particular moment in time to struggles by workers and sometimes unions who were confronting distinct failings in the common law model, which of course is dominated by the idea of freedom of contract.
And we know and it’s certainly a big part of the way we think about employment and labour law that freedom of contract usually permits the more powerful party to insist upon contract terms that favour its own interest. And so in the employment setting, we usually think of the fact that the employer is often able to set the conditions of work and there’s not a lot of bargaining that goes on at the individual level.
And so the evolution of 20th-century labour and employment law is a story about workers resisting that power in attempts to win better working conditions but those battles took place mostly in the first three-quarters of the 20th century and therefore it’s not surprising that the legal models that emerged reflected the labour market concerns of that period, right. And so the question then is well what were those concerns and how do they relate to the problems we’re facing today.
Well if you go back to the 1940s and the 1950s, the biggest problems confronting employers and governments at that time were strikes and resistance by mostly male workers employed in large industrial workplaces, you know, the car plants and the steel mills and the mines and the like. So governments designed labour laws to control that conflict and to channel it into a tightly regulated system of collective bargaining rules, right.
They granted workers the rights to collective bargaining and forced their employer to come to the bargaining table whenever a majority of employees at one of those big workplaces decided they wanted a union and in exchange for that, the law also restricted the legal right of workers to strike.
And so only workers who were employees and who were represented by a union that represented a majority of employees could legally strike and this model became known as the Canadian Wagner model because it borrowed a lot of key elements from the American Wagner model that had been adopted in 1935.
OK, so if you flash forward then to, you know, the period after those laws were introduced, what you see is that the Wagner model worked really well for what it was intended to do, which was to facilitate and regulate collective bargaining in large industrial workplaces, right. So most of our factories and our mines and our forestry workers unionized and through those unions were able to bargain pretty decent living wages and benefits and pensions and a healthy middle class emerged in Canada under that model.
Now at the same time, governments introduced a menu of statutory standards over the 20th century to protect non-union workers who worked in other sectors, right. So they weren’t in the big industrial sectors, they were in small workplaces and white-collar workplaces, services jobs, retail jobs. Jobs that were staffed mostly by women and by new immigrants and young people and these standards were secondary to the main policy objective of our governments through the middle decades of the 20th century which was to promote a family wage earned by a male breadwinner.
So, you know, my brilliant colleague Judy Fudge who’s now at McMaster famously described regulatory standards as labour law’s little sister and what she meant by that is that the collective bargaining laws that we focused all our attention on were primarily for men working in heavy industry and the rest of labour standards were for non-union workers, mostly women, right. And so some of the workers with the worst working conditions were excluded entirely from our legal infrastructure, right, so if you think about agricultural workers and domestic workers.
So these regulatory standards were set low and enforcement was lax because workers in these other jobs weren’t considered essential to the social and economic order of Canada. The main job of our labour employment laws through much of the middle 20th century was to facilitate, you know, a male breadwinner model. Anything the other workers earned, you know, anything women earned was primarily gravy, it was pin money.
Now I’m going to bring you back to your question, which is how does that model fit today and why are we always talking about employment and labour laws being stuck in the past. Well, the 21st-century labour market landscape looks a lot different than the landscape of the mid 20th century, right. The share of workers employed in those large manufacturing workplaces has declined significantly, most Canadian employees today work in smaller workplaces, not those big factories and mines.
Our collective bargaining model which was designed in the forties to facilitate collective bargaining in those large workplaces not surprisingly doesn’t work very well as a model for organizing workers in small offices and retail stores or workers who work at home or more recently who work on a bicycle or out of their car, right. So as a result union density in the private sector has been declining for years from nearly 30 percent in the 1980s to only about 15 percent today.
So that’s a substantial loss of bargaining power for Canadian workers and it’s not surprising that that loss of bargaining power is reflected in a declining share of income that’s going to workers and also to increasing income inequality in Canada.
And here’s the other thing; with 85 percent of Canadian private-sector workers now non-union, the regulatory standards regime that was originally designed as a fallback safety net to provide basic minimum standards for workers excluded from the main collective bargaining model is now the principal legal means by which we protect workers in Canada.
So, as a result, people are noticing a lot more than before the huge gaps in statutory coverage and other problems such as weak enforcement that have always characterized the regulatory regime but that were mostly ignored because those standards were supposed to be for the tertiary sector, right, which was considered secondary.
And so when the basic floor of rights begins to become the de facto ceiling for millions of Canadian workers and the abysmal levels of non-compliance and our government’s lack of interest in enforcement has become a glaring public policy, a problem that is being discussed in our legislatures, right.
And finally, almost all of the legal rules that we created in the 20th century to protect workers applied only to one type of work which dominated the labour market at the time and that’s employment, right. But especially over the last quarter-century employers have realized that they can avoid this entire legal infrastructure that was designed to protect employees by restructuring work and calling workers contractors.
And so as the percentage of workers classified as contractors has increased, there’s been greater attention directed to the question of why we use these technical 20th-century test for employment status as the gatekeeper to access to so many of our laws and benefits that are designed to make people’s lives better. So that’s a long-winded answer to your first question about, you know, labour laws being stuck in the past.
Yves Faguy: So it’s interesting everything that you’re saying here and one of the other things that we’re noticing or that, you know, has increasingly entered the conversation is this whole emergence of the gig economy. And, yeah, I mean nobody seems to really agree on the size of what the gig economy is. I’ve seen stats in the U.S. that seem to vary between seven to 35 percent of total employment.
I’ve seen figures in Canada peg the online gig economy at like around six or seven percent. Those I think are 2017 numbers so I’m hearing people say that that grossly underestimates its real size. But I guess the question is, is where does that fit in in what you’re describing and how much has the emergence of the gig economy started to influence our views for reforming, for the need for reforming our employment and labour laws?
Dr. David Doorey: Right. Well, this is the million-dollar question. You know, those of us in labour and employment law academia have a drinking game at conferences where you have to take a drink every time someone talks about gig work. And, you know, of course, we’ve had gig workers forever, right, whether you’re talking about performers and artists or writers or taxi drivers, artisans and so forth.
But I think what companies like Uber and Lyft and Foodora and the like have done is they’ve pushed these long-standing issues into the public consciousness because the work these types of workers perform is so visible, right. I mean anyone can hire an Uber driver for cheap and so this type of work becomes highly visible very quickly over the last, you know, decade or so or even less I mean in a lot of cities.
And also I’d say because this gig economy relies upon cool technology it plays into another growing fear that people have that, you know, technology and AI are going to eventually replace jobs. So I think just going to your point, the new platform digital gig economy has attracted what you could probably say is outsized attention considering the relatively small share of workers who rely upon it.
The numbers that I saw from Statistics Canada put it at about eight percent of Canadians who perform work – gig work in some form. But I think there’s a concern that the Uberization of work represents a larger troubling trend in the same way, you know, about a decade or two decades ago we used to talk about McJobs. You know, the concern that McJobs were replacing good-paying full-time jobs.
Yves Faguy: So what’s the concern with gig?
Dr. David Doorey: Well I think, you know, what we used to talk about with McJobs and with gig work now it’s a common thread which is that the standard model of employment, you know, that certainly we used to strive for in the late 20th century which was characterized by full-time good-paying jobs is under threat and it’s being replaced by precarious forms of work like the gig work where people don’t have guaranteed hours, where their pay is low, where they can be terminated at any time, where they have few benefits if – you know, few or no benefits, where there’s no pensions, right.
So the concern in the gig economy is that it represents kind of a trend or even a slippery slope towards the model we might be headed in which isn’t a good model. It’s a model that creates precarious work relative to where we would want to be which is, you know, better-paying jobs that provide a living wage.
Yves Faguy: And so how do we extend protections to this growing group of workers while we also aim to protect the other workers in our economy?
Dr. David Doorey: Well this is the big question, right, and I think – and there’s a wide range of views of how you should best regulate gig work. And I mean probably the easiest legislative design fix would be to do what the recent Ontario Changing Workplaces Review suggested, which is simply to extend the reach of employment-related statutes to all dependent contractors, right.
Most gig workers are probably already dependent contractors. Not all of them, but I think there’s a good share of people who we are calling gig workers would already meet our definition of a dependent contractor which is an intermediate category between pure independent contractors who are running a business and pure employees that we introduced in Canadian collective bargaining legislation decades ago.
Yves Faguy: Excuse me, I’m going to interrupt.
Dr. David Doorey: Yeah.
Yves Faguy: What would the features of a dependent contractor be?
Dr. David Doorey: Well a dependent contractor is someone who, you know, looks a little bit like an entrepreneur in the sense that they don’t report to a workplace, usually they don’t have to check-in or punch in and punch out, they have a little more discretion than a typical employee in terms of how they perform their work. There isn’t a supervisor looking over their shoulders so they have greater independence than, you know, say a typical Walmart cashier for example.
And the classic examples were, you know, owner-operator truck drivers for example who own their own vehicles and they’re on the road so there’s no supervisor with them but they work purely for one business. So all of their work, they’re dependent upon one business for their work.
And so the idea of a dependent contractor was that look, if labour and employment laws are designed to protect vulnerable workers who don’t have much bargaining power then don’t get caught up in this sort of technical legal definition of an employee, look at whether they’re actually economically dependent for the way in which they earn their living and if they are, then they should be entitled to certain benefits that are available to employees. So it became an intermediate category.
But it’s interesting, we extended dependent contractor to labour relations legislation in Canada, you know, 40 years ago but we didn’t do the same when it comes to other statutes. So we saw earlier this year that the Ontario Labour Relations Board ruled that Foodora Couriers are dependent contractors and they’re likely – the board is likely to rule the same for Uber Black drivers in a case that’s before the board right now, right.
Well if Foodora Couriers and Uber drivers are dependent contractors under labour relations legislation, then it would be, you know, relatively easy to just take the same definition of dependent contractor we have in the collective bargaining legislation and apply it to other employment-related statutes and, presumably, the effect of that would be to simply sweep in most gig workers under existing employment legislation.
That’s not a silver bullet answer. It’s not going to solve all the problems of low-paid gig work for a number of reasons, right. One is that look, we already have huge problems with non-compliance with a lot of this employment legislation to start with, even for employees who actually report to a workplace. And so when you take these compliance issues and you suddenly apply to workers who actually don’t have a workplace, you know, they’re working out of their cars, there’s going to be potentially even more difficult issues of compliance there.
But there’s also, you know, I think design issues that you’d have to consider and these are solvable but I think you need to turn your mind to them. So, you know, for example, if you take a typical Uber driver or someone driving, you know, that sort of – doing that sort of work, you know, you might have someone sitting in their car on the side of the road waiting for a customer to be sent to them from any of four different companies at once, right, because they have all their platforms turned on, right.
Well if you just sweep them into the Employment Standards Act for example by adding dependent contractor, then there’s a question for example of well who’s the employer of that gig worker when they’re sitting at the side of the road in their car waiting for a call from four companies? Who owes the minimum wage, right? When is a gig worker working, right; is it as soon as they turn on their app or is it only after they accept a fare, right?
Now, you know, these are technical questions that can be solved but the point I’m trying to make is, you know, you could just sweep in all gig workers into existing legislation simply by, you know, redefining who the statute applies to. But, you know, there are these issues that you need to think about and if you just sweep them in then you’re just leaving it to the labour boards to sort of fit, you know, round answers into square pegs.
So I think, you know, the other argument or the other possibility for gig – regulating gig work is to set up a separate regime for digital platform work. You know, so rather than just sweep them into existing laws, you create a new regime and you scan the legal landscape and you decide which laws should apply to those workers and which shouldn’t.
And this is an idea that Professor Harry Arthurs floated in his review of federal labour standards back in 2007 that we called Fairness at Work. And he suggested the idea of creating a new category of autonomous worker and the idea here is to build a legal model from a clean slate, right. So and then there’s benefits to this idea and I think risk too.
I mean the benefits would be, you know, if you start from a clean slate and you ask yourself well what sort of legal regime should regulate gig workers, you’re not constrained by 20th-century parameters about what an employment relationship looks like, right. So we could build a model that treats a gig worker like an employee for some purposes where we think that makes sense and as a contractor for other purposes without worrying that this creates inconsistencies with the way we do things right.
So I’m going to give you one example. Years ago I used to represent taxi drivers a lot and they wanted to be covered by workers’ compensation in case they got injured and they wanted a right to unionize and to act collectively. They wanted some form of regulation of basic income or at least some way to regulate how much they could be charged by the dispatch company.
They wanted unemployment insurance, and there may be some seniority rights, but they absolutely did not want to be employees for the purposes of tax legislation, right, because they write off expenses and they weren’t particularly concerned about pushing for hours of work legislation because they wanted flexibility in when they work and how they work, right.
So their concern wasn’t about being called an employee, it was that they wanted a system of rules that provided some necessary protections for them while maintaining other benefits that are associated with being more independent. So in theory you could develop an autonomous worker category that’s designed to address specific concerns of gig workers and you could look across a wide range of existing legal rules and decide which ones should apply.
Yves Faguy: That’s got to be pretty difficult because I think one of the issues that we see with a lot of “autonomous” workers, gig workers is that they have a wide range of desires in terms of the kinds of protections and the type of independence that they need. So how difficult is it for us to package all these people into one category?
Dr. David Doorey: Yeah and I think that’s a good point. The way I would think about this is, you know, you scan the legal landscape and you consult and you figure out what rules should apply. And it’s even more complicated in Canada because you’d have to have cooperation between the federal government and the provinces because presumably a lot of – or some of the rules you would want to apply to gig workers would be federally regulated rules.
You know, you’d want to look at, for example, their coverage under employment insurance legislation and CPP and how they’re going to be treated under tax law, right. So you’d want the federal government to be involved in protecting certain rights for certain autonomous workers but you would then need provincial governments, you know, to be looking at the statutes within their realm; employment standards, worker comp, occupational health and safety and, you know, the point you’re getting at is that not all gig workers are same, right.
So, you know, we spend a lot of time focusing on digital transportation workers like Uber but, you know, we’ve long had thousands of journalists for example and other workers who, you know, could be caught up in this in ways they don’t want to be, right. And I think this goes, you know, to another point I was about to make which is that there are risks associated with creating an autonomous worker regime.
Yves Faguy: Such as?
Dr. David Doorey: Well I think, you know, the concern is that what’s going to happen is you create a sort of secondary legal system that has fewer or weaker rights than are available under the primary system of regulating work in that if you do that you’re going to create an incentive for some businesses to perhaps reorganize their work to sweep more people into the sort of lower tier of standards.
And so, you know, this is a concern and, you know, it came up – well I think what you would need to do as a government, you know, just going back to your point, if you’re going to do this, if you’re going to create an autonomous worker category you’d have to firstly have a very clear definition of who it applies to, who are you targeting.
For example, it could just apply to digital transportation workers but nobody else and maybe you’d need a different system for, you know, artists and journalists who are writers, who are working at home. And then you also need to consider this concern that, you know, if you’re going to create a secondary system that you don’t want to create an incentive for businesses to try and get into a lower tier.
So you want your autonomous worker to have, you know, a rigorous level of protections so that there’s no real value to trying to get into that system to a lower worker standard, right. So you want a model that’s different but not inferior.
Yves Faguy: Have you seen models that work elsewhere, in other jurisdictions?
Dr. David Doorey: Look, if you think about – you know, it’s a bit of a fiction to think about the idea that we have a system of regulation that applies to employees and then a different one that applies to people who aren’t employees because in truth we have a whole bunch of systems already, right.
If you flip through any employment standards legislation in Canada you’ll see there’s a whole bunch of exceptions and special rules and special regimes for different types of workers, we already do this.
And so, you know, what we’re talking about here is creating a separate regulation for gig work like – so we have special bargaining rules for artists, for example, under the federal sector where we’ve created – you know, these are people who are not employees, they’re independent contractors but the federal government has been able to create a system of collective bargaining for independent contractors who are artists.
Well, there’s an example of where our government looked at a particular type of work and said, “Well this doesn’t really fit properly into the same model that we use for regulating Walmart cashiers so maybe we can create a different system that fits better for these types of workers”, right, and that would be the thought process you’d have to go through.
Yves Faguy: Is it conceivable that there’s a future for collective bargaining in this environment, in this changing environment?
Dr. David Doorey: Yeah, I think there is but it goes to – well let me put it this way, right. You know, we had the Foodora drivers who just unionized in Ontario, right. So they went under the traditional model that we use for collective bargaining, the union organized a majority of workers, there was a vote held, the majority of the workers voted to be in the union and the union was certified.
Now we all know that what happened next; Foodora shut down its Canadian operations entirely and left, right. And so but if they hadn’t done that, right, if they had stuck around then the workers, the union would’ve sat down and tried to bargain a collective agreement. And I think we spend a lot of time debating whether gig workers are employees or not; in other words, do they even get in the door for these legislative protections.
But there is really, you know, a big question lurking in the background that we haven’t got to yet which is look, even if the gig workers are able to unionize, are they actually going to be able to bargain a collective agreement that is decent and that lasts. And I have real questions about whether our existing model will ever work for those people.
It certainly wasn’t designed – if you go back to my opening point, you know, we designed a model to facilitate collective bargaining in a car plant with 2,000 workers where they all report to a single factory, right. So if you take a gig worker, you know, with their cars and basically anybody can become an Uber employee by clicking an app, well how do you for example organize a strike of gig workers, right. What’s the picket line.
So there’s real issues about whether, you know, the current model that we designed to facilitate collective bargaining in factories could ever work for gig workers. I think you would need something different and then you’re into the question well what sort of model. And, you know, that’s part of a much larger debate that we’re having about the future of collective bargaining law, you know, and whether the Wagner model we adopted in the 1940s can work for these different types of work and I don’t think it can, frankly.
I think you would need to have a different sort of a model that, you know, allows workers, dependent contractors to come together in some way, you know, that doesn’t necessarily depend upon, for example, a majority system or that has special rules where you sort of bargain at a sectoral level for example with gig companies, you bargain sector-based collective agreements and these are real challenges and they’re hard.
You know, we’re thinking about them; when I say we, you know, academics and even governments are thinking about well what’s the future of collective bargaining, what sorts of different models.
Yves Faguy: Let me ask you. So I believe you were a member of Harvard’s Labor and Worklife Program Clean Slate Project and that was something – I think you might have referred to that a little bit earlier in our conversation. If you were to work on a clean slate, how would you – by what first principles would you start designing a new legal framework? I mean it’s a big question but I’m putting you on the spot.
Dr. David Doorey: Yeah. Well, you know, the Harvard Clean Slate people, that report, you know, kind of – it began from the starting point of that it’s all about empowering working people throughout society, right. And so labour law is part of that discussion but it’s also, you know, about electoral politics and, you know, considering the entire landscape.
But if you focus in on labour law, right, you know, what Clean Slate said is look, you can fix the Wagner model for the sorts of workplaces where it works, right, because it pretty well in large industrial workplaces so there’s no reason to scrap it. But the problem is, you know, in Canada as I mentioned earlier, you know, you’ve got a situation where 85 percent of workers in the private sector are non-union, right, and so the model doesn’t work.
Now we know from surveys that that is not because workers aren’t interested in collective bargaining. We know that workers, a large percentage of workers who are not in unions are actually interested in being in one or having some sort of collective representation. So we can say that our collective bargaining model doesn’t work, there’s an unfulfilled demand for a collective voice.
And so, you know, I think from a Canadian perspective one of the things that I think, you know, we have to think about is – and certainly, I’ve written about it – is this idea that you need to start from a basic starting point where workers have a right to come together collectively and face their employer, right.
So you need to be able to have a bunch of workers who come together as a group and say, “Look, we’re not happy with our working conditions” and they can’t be punished for doing that, right. Well in the Canadian system that dates from the 1940s, the law protects a right of workers to engage in what is known as trade union activities. So they can join a union and they can, you know, try and unionize and they can’t be punished for it and if a majority of workers join a union then the employer has to bargain with them.
But what we don’t have in Canada is just a general free-standing right to engage in concerted activities, engage in collective activities and I think in Canada we’re going to head – that’s one of the changes we’re going to see.
So if you think about the big campaigns that have happened in the United States over the last, you know, 10 years, you’re thinking about mass fast-food strikes and, you know, strikes in support of the Fight for $15, right, well most of these strikes are taking place by non-union workers, right, McDonald’s workers and so forth. Well, in the United States they have a right to engage in concerted activities that protects them for engaging in certain strikes even if they’re non-union.
Well we don’t have anything like that and so I think, you know, you’d want to start – if you’re thinking about a model that protects gig workers, for example, you would want to have some sort of right of drivers to engage in concerted activities without being fired, right.
So right now if a bunch of Uber drivers, you know, decide they want to protest about working conditions, Uber can just take them off the system and there’s no way for them to complain. Well, that can’t be – that’s obviously not a good system of freedom of association. There has to be some rules that protect the right of workers to come together as a starting point and then you build up from that, right.
Well, let’s say you have a right of workers to come together and present demands to their employer without being fired for it, from there what obligation do you put on the employer to bargain with those people and then, you know, what are the rights to strike.
So you have to start from a foundation of a right to act collectively and then build up from there whereas our current model begins and ends with the idea of trade union activities and most of the rights are only available to workers when a majority of them want to join a union and that’s creating an obstacle for the majority of Canadian workers who want to act collectively in some way but are unable to.
So I think we’re going to have discussions about these different types of bargaining moving forward and the way I see it going is you’re going to have debates about new systems of collective bargaining. That you can say, you know, some of them move down from our current model in the sense that they don’t depend upon majority representation by a single union. So you’re talking about things like minority unions and works councils that are not dependent upon majority union support.
And then you’re going to have other proposals that move up from the Wagner model, meaning that they promote a system of bargaining at the industry or sectoral level. So imagine a system where you don’t bargain with a single franchise of a McDonald’s but you bargain all fast-food restaurants in the city of Toronto for example.
And there’s, you know, obviously a lot of talk about this and there’s a lot of support for it in theory, but in terms of designing a model that will actually work it’s tricky and it’s going to require a sea change of culture in the way we think about things because we are so used to thinking about the world through our 20th-century collective bargaining model.
Yves Faguy: How would a minority union model work? That one I have a hard time wrapping my head around, for example.
Dr. David Doorey: Well, you know, obviously there are limits to how effective it would be because, you know, the minority union – you know, it doesn’t have as much power as a majority union, right.
Yves Faguy: Right.
Dr. David Doorey: I’m going to give you a classic example that, you know, I’ve certainly written about in my blogs. So a lot of us know about a giant Toyota plant out in Cambridge, Ontario, right, and Unifor and before that the CAW have for years been trying to organize them. And let’s say – I can’t remember the numbers – but let’s say there’s 3,000 employees at that company and the Unifor has been able to sign up 47 percent of them.
Well under our system some 47 percent of the workers want Unifor to represent them and 53 don’t, well under our system Unifor has no right to represent those workers, Toyota can just say go to hell and that’s the end of it. And so, you know, in a system – that’s an unusual system by international standards, right. It’s really only, you know, a function of the Wagner model that we use in Canada and the United States where a union that represents 47 percent of the workplace has no statutory right to bargain, right.
Well so a minority union system would say OK, well maybe a majority union has more rights, you know, for example, maybe there are limits on the right of minority union workers to strike, maybe there aren’t but you can talk about that. But, you know, if you have 47 percent support or whatever you want to put it at, 20 percent – I think in the Clean Slate Harvard proposal they proposed 25 percent. So any union that has 25 percent support the employer has to bargain with that union, right. So you sit down and you bargain with that union on behalf of their own members, right.
Well, can a union that represents 25 to 49 percent of workers in a workplace bargain anything decent. Well maybe, right, or maybe they can, you know, translate that percentage of workers into a higher percentage by doing good things and providing certain benefits to their membership, right.
So the idea is the employer can’t just say go to hell to any union that represents less than a majority, there are certain obligations for them to bargain at least on behalf of their own members and then maybe unions can build up from there, right.
So it’s about challenging the current system which is a winner takes all. It’s, you know, you either have a majority or you have nothing system. You know, and that’s the way they do it in a lot of other countries, right. In Britain for example, a union doesn’t need to have majority support to have a right to collective bargaining.
Yves Faguy: You know, speaking of other countries, I think one of the complicating factors in all of this is that we do operate in a globalized economy. How difficult is it for us to think through employment and labour law reform in a global economy? Globalization exercises a certain amount of pressure on our labour relations here, so how does that unfold in the coming years?
Dr. David Doorey: Well I think certainly since Canada entered into free trade agreements especially with the United States, you know, beginning in the late 1980s, those agreements have influenced the context of our labour policy debates in real ways.
So, you know, for example, any time that a Liberal or an NDP government in Canada has tried to beef up labour rights, they are met by strong opposition by the business community and by Conservative politicians who argue that, “Look, if you introduce those laws you’re going to make us uncompetitive relative to the United States” let alone Mexico and China just the United States, right, if we need to compete with the United States for jobs.
And that’s been a powerful argument and it has led to, you know, if you think about our system of collective bargaining in Canada, for years and years most provinces and jurisdictions in Canada counted union membership votes by a card. Just, you know, union membership cards, there was no vote requirement.
And then, you know, from the late 1980s onward there’s been a shift towards mandatory votes which make it harder for unions to win and the argument is always about – well and it’s partially about, you know, democracy arguments and it’s partially about the need to compete with the United States where they had mandatory votes.
So there’s a downward pressure on our labour laws caused by the fact that we are right beside, you know, this ginormous economic behemoth that has lower labour standards than us. So this is an issue and I think, you know, it is interesting to watch what happens in the United States right now with the Biden administration.
Yves Faguy: Yeah. Can you give us a sense of what the politics of his presidency might be?
Dr. David Doorey: Yeah. I mean, you know, he has promised a lot of pretty strong labour law – labour and appointment law reforms. He has promised to extend collective bargaining rights not only to dependent contractors but to independent contractors. So he is talking about, you know, systems of bargaining by independent contractors that would be backed by statutory obligations.
He’s talking about introducing a card check union system and repealing the system of mandatory votes in the National Labour Relations Act. He’s talking about abolishing right-to-work laws in the United States which require unions to represent non-paying non-members, right.
Now whether he can do that, of course, whether any of these changes will come in you have to be a little bit skeptical because they haven’t been able to pass labour law reform in the United States since the 1950s. But, you know, if the Democrats get control of the senate in January it’s possible that some of these changes will come true and I think that would have important effects on our own labour policy debates, right.
If the United States suddenly had equal – you know, labour laws that are equal or even superior to those in Canada, then it undercuts the argument that we can’t have these laws because it will drive companies into the United States, right.
And so, you know, I think Canada should be really interested and watching what happens in the United States where they are also, you know, having these debates. In fact, they’ve been having them much longer than we have about how to change our labour and employment law systems that are based in the 20th century because their system has been eroded much quicker than our own.
So they’re way ahead of us in thinking about these issues but they are just stuck by politics that make it really difficult for progressive labour law changes to actually get implemented.
Yves Faguy: Let’s talk about Canada a little bit. How have our courts faired in shaping employment and labour law?
Dr. David Doorey: Well I think, you know, if you talk to labour and employment law people the first thing they would point to in answering that question would be the Supreme Court of Canada’s recent expansion of freedom of association under the Charter over the last 20 years. You know, the Supreme Court overturned its earlier jurisprudence and recognized a constitutional right to collective bargaining and to strike.
You know, and that gets a lot of attention and unions considered those a big win, but I think it’s an open question how much those apparent victories for labour will matter in terms of actually improving working conditions for Canadian workers or shaping the future of the law in this area. I mean most of those benefits in the Charter cases go to public sector workers.
So certainly the Charter jurisprudence will make it more difficult for governments to strip collective bargaining rights moving forward, but I think it’s difficult to point to many examples of how those Charter victories have translated into actual better lives for private-sector workers where, you know, the real concerns lie. You know, a Walmart cashier isn’t benefiting much from, you know, a ruling that the Charter protects freedom of – protects a right to collective bargaining when they really have no practical means of ever accessing collective bargaining.
So, you know, while the courts have certainly played a major role in revamping what freedom of association means, I’m not sure that’s going to matter very much to most working Canadians.
I think the other place where you see the role of the courts being important in employment law is, you know, the courts’ view – led by the Supreme Court of Canada and it’s trickled down to lower courts, their recognition of the fact that employment is characterized usually by an inequality of bargaining power. And you see this realization in the development of the common law and in courts’ interpretation of employment-related statutes, particularly over the last, you know, 20-25 years.
For example, you’re seeing it, you know, in the willingness of the courts recently to strike down contract clauses that attempt to contract out of the implied obligation for employers to provide reasonable notice, right.
So lots of employers attempt to add clauses that say that all we have to do is provide you with the minimum amount of notice in employment standards legislation and courts have really scrutinized those clauses and struck them down in a lot of cases. And often when they do so, they point to the fact that employers have all the power to write these contract terms and so we’re going to guard an employee’s right to reasonable notice very strictly.
And you see it recently in the really important case called Heller versus Uber where the Supreme Court and the Ontario Court of Appeal struck down a mandatory arbitration clause that would it have succeeded it would basically have blocked the right of workers to bring complaints under the employment standards legislation to a tribunal and it would have blocked class-action lawsuits. So again, the court has pointed out there that employers have most of the power here.
And so I think this concern about inequality of bargaining power has really played an important role for the courts in protecting employees, you know, from potential changes to the employment contract model that could be really bad for them, you know, such as blocking class actions. And you see it in the way courts interpret statutes and also tribunals, right; they take a broad purposeful interpretation to the statutes again keeping in mind that the purpose of these laws is to protect vulnerable workers.
And so we may see, for example, you know, in the Heller case, which is now moving forward, the issue is whether Uber drivers are employees under the Employment Standards Act which does not include a dependent contractor. And we could very well find that the tribunal rules that gig workers are employees even when they are not – you know, even when the statute doesn’t include dependent contractors and the way you would get there is by saying we got to interpret this statute really broadly to sweep in as many people as we can, right.
So I think that, you know, the courts are playing an important role in the discussion and they are recognizing the need to protect vulnerable workers but, you know, the courts really aren’t in a position I don’t think to fundamentally change our employment law model.
Yves Faguy: That would be the lawmakers. And so if you’re – I mean nobody has a crystal ball but how do you see that playing out? You seemed to hint earlier that the feds have to work with the provinces to some extent to address the many different facets to employment or protection of workers I guess.
Dr. David Doorey: I know the federal government is thinking about these issues and, you know, the current federal government sees the potential in sort of leading a national discussion on how to better protect, you know, gig workers for example but they’re limited in what they can do, right, because of the way we divide up jurisdiction in this country.
You know, and it’s a challenge in Canada in the sense that we’re not as polarized as the United States obviously but we are polarized, you know, and one of the things that’s happened since the 1990s is it’s really difficult for a government that’s interested in advancing the law to protect workers to make, you know, dramatic changes that have any staying power, right.
So what we see is – and it goes the other way as well, right. You know, you were seeing sort of NDP and sometimes Liberal governments making changes that, you know, swing the pendulum in favour of worker rights and then a Conservative government gets elected and they undo it and then the Conservatives swing the – you know, reduce labour rights and a Liberal NDP government gets back in and they change it back.
And so I think this is a real challenge, right, that there’s no political – you know, in the old days – that’s one thing about the 1940s and 1950s and even into the 1960s, all three of our major political parties generally agreed that the law should protect workers and at least advance collective bargaining rights and that certainly changed by the late 1990s. And so it’s really difficult – you know, there’s a general belief that we need to update our models to better protect workers for the new ways in which work is being performed.
When I say a general belief among, you know, sort of academics and economists and so forth, but that doesn’t necessarily translate into a political willingness to make those changes and that’s going to be a real challenge moving forward. We’re going to need – and that’s why I say it’s important to keep an eye on what the United States do. If Biden, you know, makes dramatic changes that fundamentally raise the statutory floor for workers in the United States, that could change the discussion here.
But, you know, it is difficult for Canadian governments that want to, you know, for example, introduce brand new collective bargaining models that will expand collective bargaining to do that on their own because there’ll be huge pressures against that move from, you know, Conservatives and more importantly probably the business sector. So it’s a real challenge I think moving forward as to how we’re going to make these changes and I am a little skeptical that we’re going to see any sudden major shifts in employment and labour law in the near future. I think the changes will be minor.
You know, I do think that we will see in terms of collective bargaining a lot. I think we will see the introduction of a right to concerted activities that will come into play in Canada and that could lead, you know, to new ways of workers acting collectively but it will take time and it won’t be – you know, it certainly won’t fundamentally alter the power balance in society.
Yves Faguy: I’d like to close out with one question though because we did start – I was asking about the pandemic and how that might have changed the conversation and do you think it has changed the conversation? Because there has been a lot of talk about this whole phenomenon of working from home and I don’t know if people are going to end up returning to the office en masse but has it raised the issue, has it introduced new issues to worry about, how does it play into all of this?
Dr. David Doorey: Well I think it’s fair to believe that some changes will come about because of COVID. A lot of knowledge-based businesses will permit or even require more workers to work from home to save money on office space for example. I know that some law firms are already talking about doing that.
And, you know, there’s a possibility with fewer people coming to workplaces that even more workers could be categorized as independent contractors since whether a person, you know, has a workplace at a company is one of the key factors in considering the employment status test.
I can imagine employers testing electronic surveillance systems to monitor homeworkers’ activities and that could give rise to, you know, issues about privacy and tensions around privacy and the balance of an employer’s right to know what a worker is doing against the rights of privacy.
I think there will be issues relating to calculating working hours that really aren’t that much dissimilar to those issues arising with gig workers. You know, when is someone at work when their work is in the bedroom. You know, unions will push for information about home addresses and email addresses as more people start working from home because obviously a union organizer can’t stand outside, you know, in a parking lot handing out flyers when nobody is in the parking lot.
So, you know, there are areas of employment and labour law where a shift towards home work will challenge existing legal rules but I don’t think those will – you know, that our law can’t adjust to those problems.
You know, but that said, I mean I don’t think we should overestimate how much COVID will change our labour markets. I expect most things will return to pre-pandemic norms pretty quickly. Most workers will still need to come to work because that’s where their work is. I think most people want to come to work, they like the social aspect of it. You know, it’s just as likely that people will have realized during this period how much they actually hate working from home and, you know, they can’t wait to get back to work.
But, you know, and I think COVID has exposed some long-standing issues in some areas of work law that will come under pressure for reform, right. And so these aren’t new issues but COVID has definitely highlighted them and brought them to the public consciousness and I’m thinking about, for example, you know, our overly complicated and restrictive unemployment insurance model for example, right.
I think there will be growing pressure, you can already see it, to simplify that process and open it up to more workers by changing the formula of insurable employment hours. So and the federal government has already signalled that they’re interested in maybe revisiting that model. I think the fact that we have a very poor public childcare system and we have a complete lack of paid sick days in many of our jurisdictions has also been exposed as a serious problem that’s going to come under pressure for change and we’re starting to see those discussions.
So I think, you know, we will see some changes in the cracks of our current system that have been exposed by COVID. But, you know, I don’t think that this experience that’s going to probably last about 15 to 18 months is going to fundamentally change the way work is done in Canada. You know, I think it’s just exposed some areas where we’re going to need some improvement moving forward.
Yves Faguy: Well, thank you. I’ve been talking to David Doorey, law professor of labour and employment law at York University in Toronto. Thanks so much for helping us get a better understanding of how we need to move forward on some of these issues.
You can hear this podcast and others on our CBA channel, The Every Lawyer on Spotify, Apple Podcasts, Google Podcasts and Stitcher. Subscribe to receive notifications for new episodes. And to hear us in French, listen to our Juriste Branché podcasts.
If you enjoyed this episode, please share it with your friends and colleagues. And if you have any comments or feedback and suggestions, feel free to reach out to us on Twitter @CBAnatmag and on our Facebook page. And check out our coverage of legal affairs at nationalmagazine.ca. A big thank you to our podcast editor Ann-Catherine Désulmé. And thank you all for listening to this month’s episode of After the Pandemic, we’ll catch you next month.