Graduated Freedom of Association: Worker Voice Beyond the Wagner Model

The guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms has been held to protect the right of workers to make collective representations to their employers without fear of reprisals, and to require employers to engage in meaningful dialogue about those representations. Wagner-style statutes such as the Ontario Labour Relations Act condition the right to collective bargaining on majority employee support for a trade union. Because that condition is impossible to meet in practice in a great many workplaces, large numbers of employees are left with no effective means of exercising their right of association. In response to growing worker demand for new forms of collective voice, this paper puts forward a modest proposal called Graduated Freedom of Association. Under that proposal, a new “thin” model of freedom of association would serve as an alternative to the “thicker” Wagner model for workers who do not have collective representation under the latter model. The thin model, which would have some parallels to the provisions of the much-criticized Ontario Agricultural Employees Protection Act, would enable all workers to exercise at least the minimum bundle of rights and freedoms protected by the Charter without having to opt for a majority union as bargaining agent. Graduated Freedom of Association would impose few new substantive obligations on employers, but would help to address the large representation gap for employees who want a collective voice at work but cannot realistically acquire it under today’s labour relations statutes.