Freedom of Association in a Free Enterprise System: Wal-Mart in Jonquière
Canadian Labour and Employment Law Journal, Vol. 15, 2010
35 Pages Posted: 31 Dec 2010
Date Written: December 30, 2010
After a union was certified to represent employees at a Wal-Mart store in Jonquiere, Quebec, in 2004, the union and Wal-Mart bargained to impasse. When the union obtained an order requiring that the dispute be submitted to arbitration, Wal-Mart announced that it would close the store and subsequently did so. The union and the dismissed employees initiated a range of unfair labour practice complaints challenging the closing and the dismissals. Two of these complaints were eventually reviewed by the Supreme Court of Canada in 2009, and in the leading decision in Plourde v. Wal-Mart, the Court concluded that no remedy was available to the dismissed employees under certain sections of the Quebec Labour Code which provided for reinstatement where workers have been dismissed for exercising rights under the Code. This paper first examines Wal-Mart’s well-documented pattern of resistance to unionization. It then considers whether the majority’s position is defensible in the light of the wording of the Quebec statute, the Court’s previous commitment to the purposive interpretation of statutory unfair labour practice provisions, and its recent commitment to protecting collective bargaining as an important derivative of the guarantee of freedom of association in the Canadian Charter of Rights and Freedoms. Particular attention is paid to the origins of the idea, especially in the United States, that an employer has the right to close a business even in order to avoid a union, and to how that idea has been addressed by labour boards across Canada.
Keywords: Trade Unions, Labour Law, Unfair Labour Practices, Wal-Mart, Labor Law
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