Running Head: HUMAN RIGHTS 1

Human Rights

Students Name

Institution Affiliation
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Question 1

The supreme court of Canada made a decision that significantly impacted the

conceptualizing the collective bargaining that also championed for the rights and freedoms of the

members of the labor unions. It has enabled the members of the labor unions to associate

themselves in the collective bargaining on the issues of the workplaces and thus reducing crisis

and strikes amongst the workers. The Canada's important realization of the significance of the

collective bargaining to the freedom of association together with the knowledge of understanding

of the international law of the various ways of the collective bargaining as a central component

of the association of freedom.

The promotion of other rights of the charter, freedoms, and values were all stipulated and

advanced by the conclusion of section 2 (d) of the particular charter that guards the collective

bargaining (Fudge, 2012). The right to strike and to collectively bargain for the new rights that

created the legislature rather than the fundamental freedoms was dismissed as part of the five

reasons that provided the labor relations in the whole of Canada. The last three reasons that were

proved by the court for the overturning precedent were mainly as a result of the aspects of the

precise analysis of the right to bargain collectively. The ruling of the court has entirely boosted

and promoted the rights of the unions and other stakeholders who normally voice their

grievances through the unions. The court also enables the collective bargaining in Canada to be

made effective and that in cases of challenges faced by the unions; they have a right to voice out

their views without any restriction.

The next great protection provided by the court ruling to the collective bargaining rights

is on the freedom of association. The shift was from a single person to a collective right. In the
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labor trilogy, the court rejected the idea that freedom of association that applied only to the

activities and practices that are capable of performance by individuals. The Supreme Court

judgment activated the freedom to have a collective voice concerning groups and unions rather

than individuals. The first initiatives brought about by the ruling provided guidance and other

collective activities that may be performed by individuals to be collectively operated in the form

of group. There are also instances and situations where some labor operations and activities

cannot be managed by an individual but can be best represented in a group. Therefore, the

Supreme Court to a greater extent enabled the use of group or collective bargaining instead of

individual thus promoting the use of close bargaining.

The limited scope that is provided by the state and its entire obligation in the creation of

protections for the collective bargaining has its origin in the Supreme Court. The court's

commitment is to ensure that the charter only applies to the government and the public actions.

The Supreme Court has entirely continued to focus on its position where it was first articulated in

the Dolphin Delivery, where the ordinary law litigation that existed between the private parties is

outside the Charter. The restriction here means that employment context is that employers can

make use of their universal rights that are enforced by the judge in the legal doctrines. These

doctrines are meant to interfere with the freedom of the workers and their way of making unions

represent them in the bargaining agreements. The charter will thus restrict them entirely and

allow the representations of unions and groups primarily in the strikes and collective agreement.

Substantive equality and the collective bargaining right have made it possible for the

negative case for the process of overturning the precedent. The international law and the values

of the charter are used to make positive cases and the collective bargaining views that are made

clear by the unions (Dauvergne, 2013). The bargaining is guaranteed and protected by the
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freedom of association. They are used to identify the equality of the charter and its values. The

primary goal of the promotion of the substantive equality can be used to function as the

normative basis for the grouping of the purely collective right to associate freely with the trade

unions. The court has provided a more comprehensive account of what brings out the inequality

of the bargaining power and the degree at which the remedy is achieved. The court has gone

ahead to developing a more substantive right to the bargainers thus illuminating the vision of the

equality.
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Question 2

The Supreme Court of Canada has always supported minority unionism as evident in the

case known as Fraser. During the hearing of the case, the court gave a ruling that statutory

scheme that governs workers in the agricultural sector found in Ontario was formed according to

the constitution, despite the fact that there was no mechanism which was useful for collective

bargaining, this was the right with the modest protection of the law. The decision by the Supreme

Court was much-maligned, and there was no charter-litigation as it was not clear if the court was

capable of protecting human rights fully (Compa, 2014). In this case, the Supreme Court showed

support of safeguarding minority unionism constitutionally.

The laws of Canada allow workers to build unions and safeguard their rights from being

exploited by employers. Employees are allowed to form unions for collective bargaining. The

Supreme Court of Canada also supports the formation of unions even by unorganized groups.

The rights to form unions were established in Health Services decision brought by Employee

Union of BC Government (Compa, 2014). The rights were later revisited by the Charter of

Freedom and Rights of Canada as well as in Fraser who has a connection with collective

bargaining. In its decision levels, The Supreme Court of Canada has shown that it is right of

workers in various associations. This was seen in the case of Fraser when the court supported it

because Fraser has a single regime of bargaining collectively.

The Supreme Court of Canada has made the door for minority unionism much open.

Canadians should then consider developing organizing models seeking reestablishment of

minority unionism. The decision of Fraser case by the Supreme Court of Canada has made many

people have a more significant opportunity of expanding unorganized unions. According to the
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article Harnessing the Possibilities of Minority in Canada Canadian Supreme Court has opened

the door to constitutionally protect minority unionism (Compa, 2014). This show that a party

representing a majority of any unit given of bargaining dont have to do it exclusively. The

Supreme Court made the decision based on the fact that collective representation of minority was

better than in situations where there is no representation which is collective (Fudge, 2008).

According to Compa (2014), it is not a matter of best lawyers for you to get a better

decision in Canadian Supreme Court but it depends on putting together of organized workers of

an organization to help in raising grievances to employers. The union should also apply pressure

in situations like these to bend the ruling by the court. The door for minority union is wide open

in Canada and workers can just push forward their grievances (Fudge, 2008). The situation of

collective bargaining needs to be organized earlier and then action permission later. This has

helped workers in raising their voices.

How minority unionism might operate alongside the Wagner model

The model has several distinct features of collective bargaining. A bargaining unit is

formed by employees, and this can only be achieved after obtaining certificate from an

independent labor board. The model protects employees from minority unionism and also from

unfair labor practices and reprisal. According to Wagner model, employers should recognize

workers and bargain with them in good faith. It also states that issues occurring from collective

agreement should be dealt with using arbitration method instead of strikes (Fudge, 2008). The

Wagner model hence is in line with the objectives of minority unionism.

According to the Wagner model, automatic certification unions are provided hence

employees are granted the right of collective bargaining agreement. It also ensures that workers
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voices are heard concerning layoffs, payments, and length of working days. Under this model,

management still has the power of making decisions on how labor will be divided. The union

must make sure that all workers abide by Wagner model to widen wedge between leaders and

workers. The model also prohibits workers who are under collective agreement from going on

strikes. According to the model, decreasing initiatives of the government will cause employees

their job guarantees and welfare. Moreover, workers should be controlled when it comes to

matters such as layoffs or hiring to ensure that the process is free and fair (Fudge, 2008). The

model has hence helped in shaping image of minority unionism because it has helped workers in

achieving their rights.

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Question 3

The Supreme Court of Canada made a decision that is likely to increase the chances of

minority unionism being rightfully recognized in the nation. Since way back in history, the

Wagner Act model has always formed the basis for Canadas collective bargaining regime. The

Wagner Act Model advocates for majority union recognition in Canada. Erosion of the Wagner

model is on the verge as the Supreme Court is almost giving in to minority unionism in Canada.

Minority unionism will negatively affect workers and unionism in Canada in several ways.

One of the major drawbacks of minority unionism is that it has to be fully examined

whether it is logical corollary to it right-to-work to laws (Hrynyshyn, 2011). Minority unionism

advocates for a small but strong vocal group, unlike the traditional unionism where the majority

would win in their collective bargaining. Minority unionism advocates for the small but strong

vocal to have a non-traditional unionism with their employers. The problem is likely to arise

when the opponent of minority unionism begin to push for the right-to-work laws too. The

inclusion of the minority in the establishment of non-tradition minority unions will obviously

make politician suggest that these minors be counted. This will negatively affect the unions as

the disassociation of the minority from the traditional unions will be counted. The unions are less

likely to be paid, and in case they are paid, the agency fee is likely to be reduced as a result of the

right-to-work to laws.

The minority unionism allows for people to dissociate themselves from the traditional

unionism yet they still enjoy the benefits that come along with it. Without a doubt, this will

attract free riders who would pay a decreased fee in comparison to what the union is supposed to

pay or even chose to pay nothing at all. After all, they are rightfully guaranteed of the gains. This
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will lead to the fall of the majority unions in Canada as they will not have enough cash on which

they can survive.

As stated earlier, Canadian workers have always liked the exclusive union representation.

The workers are very familiar with the Wagner Act Model which advocates for majority

unionism. When Canadian workers think of unionism, their desire is drawn by the bona fide of

the Wagner Act Model. This is unlike the minority unionism which they are completely not

familiar with. Workers who are likely to go the minority unionism way might end up being very

confused as they even are not aware of what is required of them or their employers.

Minority unionism being recognized by the state will also cause those against it to push

for them to be likewise recognized and protected by the state. Even in the absence of a proposal

to make representation by union way easier, minority unionism remains a threat to the rights of

workers. This push for the anti-minority unionism to be recognized by the state will cause

nothing but chaos between the two types of union representations. At the end of it all, minority

unionism might end up being protected and recognized more by the state hence the collapse of

traditional unions in Canada (Godard 2012).

In as much as the majority threshold goes under the current Wagner Model Act, some

degree of consistency and fairness exists. The majority wins. The collective bargaining unit is

that every member of the union is supposed to pay a certain fee in exchange for the services of

the union or no one is covered, and no one pays, therefore, no services. The minority unionism

does not advocate for fairness and consistency. One can still choose to be a member of the

majority union but not pay the fees in exchange for their services. In other words, minority

unionism has brought unfairness among members of unions (Stevens &Templeton, 2016).
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Minority unionism has also caused rivalry between the workers and employers at the

workplace (Walchuk, 2016). The employer can decide to choose among the various employees

representatives. They can do this by directly negotiating with specific individual union

representatives. This may result in cutting the credibility during collective bargaining. Other than

promoting freedom of association at the workplace, minority unionism serves to weaken them

such that even during collective bargaining they are divided and cannot come up with an

agreement as a whole.

In conclusion, the biggest worry is that minority unionism will compete with the Wagner

Model Act which will cause the existing unions to compete with one another for state recognition

and protection. In addition, it will have other adverse negative impacts on the Canadian workers

and unions as advocating for the right-to-work laws, making employers to divide workers

between union representatives, the collapse of unions due to reduced agency fees in exchange for

their services and inconsistency and unfairness in contribution to the already existing unions.
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References

Compa, L. A. (2014). The Wagner Model and International Freedom of Association Standards.

Dauvergne, C. (2013). How the Charter Has Failed Non-citizens in Canada: Reviewing

Thirty Years of Supreme Court of Canada Jurisprudence. McGill Law Journal, 58(3),

663.

Fudge, J. (2008). The Supreme Court of Canada and the right to bargain collectively: The

implications of the Health Services and Support case in Canada and beyond. Industrial

Law Journal, 37(1), 25-48.

Fudge, J. (2012). Constitutional Rights, Collective Bargaining and the Supreme Court of

Canada: Retreat and Reversal in the Fraser Case. Industrial Law Journal, 41(1), 1-29.

Godard, J. (2012). Labour law and union recognition in Canada: a historical-institutionalist

perspective. Queen's LJ, 38, 391.

Hrynyshyn, D., & Ross, S. (2011). Canadian autoworkers, the climate crisis, and the

contradictions of social unionism. Labor Studies Journal, 36(1), 5-36.

Stevens, A., & Templeton, A. (2016). Collective action and labor militancy interrupted: Back-to-

work legislation and the state of permanent exceptionalism at Air Canada. Economic and

Industrial Democracy, 0143831X16682306.

Walchuk, B. (2016). The Pitfalls of Embracing Minority Unionism. SAGE Open, 6(3),

2158244016667312.