Unintended Consequences: The Legal Incoherence of a Piecemeal Attack on Majoritarianism and Exclusivity

Abstract

Much has been said about the Ontario Progressive Conservative Party’s recent proposal to introduce so-called "right to work" legislation in Ontario, should they take office. This proposal has been extensively criticized on the grounds that allowing individual employees to opt out of paying union dues while still receiving the benefits of a collective agreement would allow these individuals to "free ride" on dues paying members. Unfortunately, these criticisms completely miss the mark, as the law reform proposal would not just allow employees to opt out of paying union dues, but rather to opt out of the collective agreement in its entirety. It would allow employees to have individual contracts of employment with their employer while retaining majoritarian principles for unionization. This essay argues that the proposed reform is an ill-considered and broad attack on the principles of representative democracy which structure the "Wagner Act Model" of workplace democracy in Canada, criticizes the legal incoherence of this proposal, and points out some radical and unintended consequences for labour relations law if it were implemented.

Keywords: labor, collective bargaining, right to work, majoritarianism, exclusivity