Is another Charter challenge on BC labour rights waiting in the wings?

August 16, 2007

the BC government mulls over the Supreme Court's recent landmark
decision that Bill 29 is unconstitutional (because it infringes on
health care workers' right to collective bargaining), it should also
consider the constitutionality of another piece of labour legislation
passed in 2002.

Although not yet challenged before the courts,
Bill 48 (the Employment Standards Amendment Act) wiped out equality
rights for thousands of BC workers. The Bill arbitrarily excludes
unionized workers from the Employment Standards Act, the law that sets
out minimum workplace protections and benefits.

standards deal with issues vital to economic security – minimum wages,
minimum and maximum hours of work, overtime pay, parental leave,
vacations, statutory holidays, and other key workplace rights. The Act
establishes a minimum floor below which employers cannot go, and should
provide the starting point for negotiating improved working conditions.
Employment standards also establish a fair playing field among
employers, reducing unfair competition by unscrupulous employers.

first glance, the exclusion of unionized workers from the Employment
Standards Act may not seem of great concern. After all, the Act is
particularly important to society's most vulnerable and lowest-paid
employees. Unionized workers have unions to protect them, and most of
us assume that their collective agreements provide pay and working
conditions that go above and beyond the minimum. On closer examination,
however, it becomes clear why virtually every major business lobby in
the province pushed the new government in 2002 to strip unionized
workers of the basic rights enshrined in the Act.

Before Bill
48, the basic rights and protections in the Employment Standards Act
were important even to unionized workers for four reasons. First, if a
worker's collective agreement went below the basic floor established by
the Act (for example, overtime pay less than what was guaranteed in the
Act), he or she could grieve this provision to the Labour Relations
Board and have the substandard clause deemed illegal. Not anymore.

Second, prior to 2002, unions focused on winning better
pay and conditions than the basic provisions in the Act. Now, they must
spend a chunk of their efforts simply re-winning basic rights that
others have in the law.

Third, many collective agreements did
not cover every single issue dealt with by the Act. But that was fine,
because where an agreement was silent, the Act served as the default.
Not anymore. Bill 48 left gaping holes in hundreds of collective
agreements. The government did not give unions the opportunity to
re-open their collective agreements to ensure their members were not
exposed. Some employers have exploited these gaps to deny workers
protections set out in the Act. When unions have grieved their actions
to the Labour Relations Board, the employers have won. The lost rights
have involved such matters as maximum hours of work per week, overtime
pay, and severance pay in lieu of minimum notice of termination.

Bill 48's exclusion of unionized workers also opened the door to
collaborative deals between employers and "alternative"
employer-accommodating unions. They "opt out" of the legal protections
of the Act, and agree to conditions of employment below what all other
workers are required to receive by law. Bill 48 creates an incentive
for employers to seek out and certify with such unions. And that is
precisely what has been happening. BC's largest employer-accommodating
union, the Christian Labour Association of Canada (CLAC), has expanded
its membership in BC since 2002, and has been negotiating collective
agreement provisions that are below the minimum standards of the Act.
My research found many CLAC agreements with clauses for overtime pay,
annual vacations with pay, and termination pay that are below the Act's
minimum floor.

The exclusion of unionized workers from the
Employment Standards Act denies thousands of people legal rights to
which they are entitled, simply by virtue of membership in a union. In
no other province can employers pressure unions to "opt out" of
employment standards law as they now can (and do) in BC.

The BC
government should revisit Bill 48, and rescind this arbitrary and
inequitable exclusion. All BC workers should be guaranteed the same
minimum employment rights, regardless of their union status.

Fairey is a labour economist with the Trade Union Research Bureau, and
a research associate of the Canadian Centre for Policy Alternatives. He
is the author of a recently released CCPA report titled
Negotiating Without a Floor: Unionized Worker Exclusion from BC Employment Standards
(produced as part of the Economic Security Project, led by the CCPA and
Simon Fraser University).