Submission to the Gender Wage Gap Steering Committee

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Wilfrid Fisher
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1 Submission to the Gender Wage Gap Steering Committee January 15, 2016 Submitted by: AMAPCEO

2 AMAPCEO is a bargaining agent representing 12,000 professional and supervisory public servants, most of whom work in the Ontario Public Service, as well as in a variety of broader public sector organizations, in over 130 communities across the province and in 11 cities outside Canada. AMAPCEO applauds the government s worthwhile initiative in seeking solutions to the seemingly intractable problem of the gender wage gap. For a problem as large and multi-faceted as the one being studied, there are naturally many possible solutions. Given the variety of stakeholders, each with their own perspective, AMAPCEO is confident that the government will be presented with a wide variety of different approaches to resolving the gender wage gap. For its part, as a union, AMAPCEO is focussing its submission on the role that unionization plays in addressing the gender wage gap within any given workplace. As such, the heart of AMAPCEO s submission is focused on proposals which can serve to expand union density in Ontario, in particular: Expanding opportunities for collective bargaining for unrepresented excluded employees A return to the historical norm of card check certification Unions, the Gender Wage Gap, and Union Density The positive impact that unions have on the gender wage gap is well known, and does not require a recital here. Indeed, we need only point the Committee towards its own background paper, which, at page 29 presents the following data: Chart 1: Ontario's Gender Wage Gap by Union Status, Average Hourly Wages 25.0% 20.0% 15.0% 10.0% 5.0% 23.3% 23.1% 20.6% 22.4% 22.6% 21.4% 20.3% 20.9% 21.1% 19.4% 10.5% 11.6% 9.8% 10.4% 10.0% 9.3% 11.1% 9.8% 8.2% 7.8% 20.8% 20.6% 18.5% 18.3% 16.9% 16.4% 16.1% 16.3% 7.7% 6.5% 6.6% 5.9% 5.2% 4.9% 4.7% 4.6% 0.0% Unionized Employees Non-unionized Employees It is clear that unionization has a significant impact on the gender wage gap. Given this it is equally clear that one demonstrably good method of dealing with the gender wage gap would be for the government to legislate in a way that does not discourage union organizing initiatives. 1 P a g e

3 Over the past few decades, union density in Canada has fallen. Statistics Canada notes that the overall unionization rate fell steadily through the 1980s and 1990s reaching some stability in the 2000s. 1 That stability, though, is largely due to high union density in the public sector; in the private sector, unionization rates are still falling. Table 1: Unionization Rates, Canada, Public and Private Sector (percentage) Change ( ) Public Sector Private Sector Table 1 shows public sector union density as remaining consistent (in fact, showing slight growth). Conversely, private sector density went down 2 percent considered as a share of the workforce, which is approximately an 11 percent reduction. Why the difference? One explanation is the stock-flow model, which suggests that union density is steadily lost by way of firms closing. That is, in every economy, firms are continually closing, with new ones opening in their wake. What the stock-flow model points out is that those closing firms may be unionized, while newly opening firms will (most of the time) begin as non-union. Thus, continuous organizing is required to replace the lost union members, to organize a share of any net new jobs created in the economy, and to maintain union density. 3 Another factor impacting union density is the move made in Ontario in 1995 to eliminate card check certification for organizing new workplaces. Thus AMAPCEO submits that: (a) Unionization is a major factor in addressing the gender wage gap. (b) Union density is falling. (c) The answer to falling union density is for the government to legislate in a manner that does not discourage organizing workplaces. It is with these three postulates in mind that AMAPCEO offers its recommendations to the Steering Committee. 1 Diane Galarneau & Thao Sohn, Long-term trends in unionization Statistics Canada, November 2013 at 1. 2 Ibid. at 4. 3 Felice Martinello, Mr. Harris, Mr. Rae and Union Activity in Ontario, (2000) 26 Canadian Public Policy 17 at P a g e

4 Recommendations 1 Reforming Employee Exclusions in the Ontario Labour Relations Act As part of our submission to the Changing Workplaces Review, AMAPCEO spoke to this issue. We would like to take this opportunity to revisit that recommendation in the context of this review process. At present, the Ontario Labour Relations Act (OLRA) deprives many employees in Ontario of the right to join a union. Over the years, these exclusions to the Act have developed out of concern for a variety of public policy rationales. However, especially over the last 15 years, the protections afforded to employees and their unions under the Canadian Charter of Rights and Freedoms have matured and expanded. 4 Statutory amendment is required in order for the OLRA to stay in step with Charter values which were not yet fully developed during previous phases of labour relations reform in Ontario. It is no longer appropriate for the government to prioritize its discrete policy interests over the right of Ontarians to join together and participate in collective bargaining with their employer. Of particular concern to AMAPCEO are those workers who are excluded from the Act without the provision of an alternative legislative route to collectively bargaining with their employer. This includes several specific groups of professionals, including architects, dentists, land surveyors, lawyers and doctors 5 as well as domestic workers, hunters and trappers, horticulturalists, judges, and labour mediators and conciliators. 6 These exclusions are unnecessary, punitive and may well be inconsistent with the Charter. Beyond those exclusions which are premised on employment in a specific occupation, the OLRA also contains exclusions for any employees who are exercising managerial functions or employed in a confidential capacity in matters related to labour relations. AMAPCEO urges the Steering Committee to recommend amendments to the Act designed to better facilitate access to collective bargaining for employees, notwithstanding their exercise of managerial functions. Justifications for the managerial exclusion in the Act have been premised upon the avoidance of conflict of interests. The conflicts traditionally identified are twofold. First is the conflict which might arise if those employees tasked with implementing labour relations are placed in a bargaining unit they are to supervise and negotiate with on behalf of the employer. In addition, exclusions have been justified owing to a second, more amorphous conflict of interest that suggests managers need to keep free from a divided loyalty as between their employer and their bargaining agent. AMAPCEO s experience as a bargaining agent demonstrates that this latter justification is rooted in outdated conceptions of how collective bargaining operates in the modern workplace. Because an employee may be a supervisor and may assist the employer with directing other employees does not create a conflicting loyalty that should bar them from also engaging in collective bargaining on their own behalf. The antiquated presumption that collective bargaining subverts the loyalty and integrity of such employees is no longer sufficient to 4 Beginning in Dunsmore v. Ontario (Attorney General) 2001 SCC 94, continuing in Health Services and Support Facilities Subsector Bargaining Assn v. British Columbia 2007 SCC Excluded in s.1(3) (a) of the Labour Relations Act. 6 Excluded in s.3 of the Labour Relations Act. 3 P a g e

5 disallow them to exercise their freedom of association. Indeed, there are examples where supervisory/management employees have a long tradition of bargaining collectively with their employer (outside the OLRA), e.g., supervisory officers in school boards and in municipal police forces. Statutory reform to address this issue is necessary as, in Ontario, our labour relations board jurisprudence has, over time, taken a relatively broad approach to applying this exclusion. 7 Unlike the occupational exclusions, however, it would be practically difficult to simply remove the managerial exclusion from the Act, as the inclusion of management and labour relations staff inside of bargaining units they actively supervise and bargain with can create a true, specific conflicts of interest that make little labour relations sense in most workplaces. AMAPCEO recommends that the managerial and labour relations exemption be reworked. A new process should be put in place to facilitate the membership of managerial and confidential staff into unions, if they so choose. In our submission, this scheme could seek to emulate that which already exists in s.14 of the OLRA in respect of security guards. Currently, s.14 provides employers with a process under which they ask that a union satisfy the Board that the inclusion of security personnel into a mixed bargaining unit with regular employees would not create a conflict of interest. If this onus is not met, the Board will not certify the mixed unit. In our submission, this section could act as a template for a system that would allow managerial staff to exercise their freedom of association, while protecting employers from any true conflicts of interest that might result. 7 It should be noted that this approach has not always been followed in other Canadian jurisdictions, even where similar statutory language is present. For example, in the federal jurisdiction, the Canadian Industrial Relations Board has historically rooted its interpretation of a similar exemption in the presumption that individuals who wish to exercise and bargain collectively are entitled to such rights and taken strong notice of the Canadian government s various commitments to freedom of association. It may be noted that the narrow approach taken in the federal jurisdiction has yet to present the kinds of labour relations problems that a broadly applied exclusion would purportedly avoid. 4 P a g e

6 The Gender Wage Gap Steering Committee should recommend amendments to the Labour Relations Act which emphasize that employees currently excluded from collective bargaining with their employer be permitted, to the greatest extent possible, to engage in this type of associational activity. The managerial exclusion should be removed and replaced with new provisions introduced to ensure that where conflicts of interest exist, managerial staff may be represented by a trade union not already present in that workplace. 2 Enabling card-check certification throughout all sectors of the economy Card check certification means, simply, that rather than going through an election process to organize a workplace, a union can simply get employees to sign cards stating their desire to unionize. The cards are then submitted to the labour board and, if more than the mandated percentage of employees have signed, the union becomes recognized as the bargaining agent in that workplace. Card check certification is not foreign to Ontario. It was contained in the first made in Ontario labour legislation, the Labour Relations Act of 1950, which was introduced early that year by the new Premier, the Conservative Leslie Frost. 8 The OLRA 1950 mandated a union certification process which called for a vote in the workplace if between 45 and 55 percent of employees had signed cards, with the Labour Board empowered to certify a union in instances where more than 55 percent of employees had signed. Additionally, the Labour Board had the authority to mandate certification in certain circumstances where more than half of employees had signed cards. 9 The OLRA consistently contained a process for card check from 1950 to 1995, with certain amendments made along the way. For instance, the specifics of the OLRA after amendments in 1986 allowed for a union to apply for certification if, in the previous six month period, the union had obtained the signatures of 55 percent of employees within the proposed bargaining unit. Upon an application for certification on a card check basis, the OLRA 1986 contained a 15-day period in which a card signer could 8 Labour Relations Act, R.S.O c. 194 [OLRA 1950]. 9 Ibid. s.7. 5 P a g e

7 petition to negate their signature. The Board also had the discretion to order a vote, even if the 55 percent threshold was met. 10 This process was modified by the Rae government s Bill 40, which came into force on January 1, These amendments eliminated the petition right mentioned above and, required a secret vote if more than 40 percent but less than 55 percent of employees, had signed cards. Additionally, in cases where the true wishes of employees could not be determined due to employer interference, the Board was empowered to simply order the certification of a union. 11 The Bill 40 amendments did not stand the test of time. They were repealed along with the decades old system of card check certification by the Harris government s Bill Instead of card check certification, a mandatory secret ballot process was put in place for instances where a union could show that at least 40 percent of employees had signed cards. The Board lost the ability to automatically certify a workplace. 13 In present day Ontario, card check certification exists in the construction industry, where it was reintroduced by the McGuinty government in While this marked a good beginning, it falls well short of a return to the status quo which existed for years importantly: a status quo endorsed by all three political parties for a period of 45 years prior to the repeal of card check certification by the Harris government in Card check certification matters as it has a significant impact on unions success in organizing drives. The negative impact of moving from card check to mandatory voting has been demonstrated by scholars. For example, one empirical study found that mandatory votes reduce certification success rates by approximately 9 percentage points below what they would be under card check. 15 Another study tells us that The impact of Bill 7 on labour relations in the province was felt almost immediately as the number of applications for certification filed with the Board decreased to the level experienced prior to the Bill 40 amendments to the Act. The number of applications for certification which were ultimately decided in favour of the trade union dropped dramatically to below 70 percent. This trend has continued throughout the decade following these amendments to the Act. 16 Another study found that when Bill 7 took effect, certification activity decreased to levels far below those prevailing previously in Ontario with a fall of 28.7 percent in certifications granted by the Board. The analysis in that study posits that approximately 60 percent of that drop off was due to a fall in 10 Michael G. Sherrard & Keith P. Burkhardt, Employee Free Choice Act: Ontario Experiences and Potential Economic Impact (2009) 59 UNBLJ 110 at Ibid. at Bill 7, Labour Relations and Employment Law Statute Amendment Act, 1995, 1 st Sess., 36 th Leg., 2005 (assented to November 10, 1995). 13 Sherrard & Burkhardt supra note 10 at Bill 144, Labour Relations Statute Law Amendment Act, 2005, 1 st Sess., 38 th Leg., 2005 (assented to June 13, 2005). 15 Susan Johnson, Card Check or Mandatory Representation Vote? How the Type of Union Recognition Procedure Affects Union Certification Success, (2002) 112 The Economic Journal 344 at Sherrard & Burkhardt, supra note 10 at P a g e

8 organizing attempts, with the remainder owing to the shift from card check to a mandatory representation vote. 17 In sum, there is a clear consensus that a card check regime makes organizing easier. The card check regime existed in Ontario from 1950 to The McGuinty government made a partial move back to a balanced labour relations regime by re-introducing card check to the construction industry (in this context it is, of course, important for the Steering Committee to note that the one industry the government brought card check back to is male-dominated). As the Steering Committee well knows, unionization works to address the gender wage gap. As such, AMAPCEO recommends a return to card check certification in order to facilitate greater unionization. The Gender Wage Gap Steering Committee should recommend amendments to the Labour Relations Act which would see a return to card check certification throughout the economy. AMAPCEO appreciates this opportunity to comment on this important matter and we are available to elaborate on these recommendations and to respond to any questions that the committee may have. 17 Martinello, supra note 3 at P a g e

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