Economic analysis

Can Tim Hudak sell right-to-work in Ontario?

Or did his party just hand its opponents a silver bullet?
Ontario PC Leader Tim Hudak delivers an address in Ottawa on March 6, 2010. Hudak is promising lower taxes and a smaller government if the Progressive Conservatives win the Oct. 6 Ontario election. THE CANADIAN PRESS/Pawel Dwulit
Rebecca Cook/Reuters

For the past few months, the Ontario media has been wondering whatever happened to Progressive Conservative leader Tim Hudak’s vow to take on the unions in the next provincial election.

Back in 2012, the party released a “white paper” proposing to make Ontario the country’s first right-to-work province  and Hudak proclaimed his support for “workers’ choice” during a speech to the Economic Club of Canada and at a press conference last fall.

But since then, Hudak has seemed content to let the issue quietly dissolve, with The Globe and Mail reporting that party members predicted the right-to-work proposal would be dropped from the party’s official platform this spring. That was, until last week, when Dave Brister, a former Windsor city councillor and PC candidate for Essex — a heavily unionized manufacturing region — announced on Twitter that he was staunchly opposed to right-to-work laws…

…and then promptly announced he’d been dumped by the party as a candidate.

The controversy over Brister is particularly bad timing for the PCs, who are heading into two by-elections next month and had seemed poised to win them both by focusing on Liberal scandals and the province’s massive debt. It has forced Hudak to come out and reaffirm that he still supports the idea of right-to-work laws, telling reporters near Ottawa: “If you’re asking me if I’ve changed my mind about modernizing labour laws, absolutely not.”

Right-to-work laws typically outlaw mandatory union membership by making it illegal for unions to charge dues as a condition of employment. They’ve become increasingly popular among U.S. states who have been desperate to show the world they’re open for business since the financial crisis. Even former union strongholds like Michigan and Indiana have adopted right-to-work laws. (Last year, a judge declared Indiana’s law unconstitutional, sparking a legal challenge.) Proponents of right-to-work legislation, including Hudak, argue such laws attract business and create jobs, while opponents say right-to-work merely drives down wages. As James Cowan of Canadian Business wrote last fall, the evidence on both counts is mixed.

However, the way such laws are structured south of the border puts American unions in an oddly precarious position. While some states have outlawed mandatory union dues, federal laws require unions to provide services to all workers who may be covered by a collective agreement, whether or not they’re dues-paying union members. In practice that means unions are required by federal law to provide services to employees— representing them in expensive arbitration proceedings, for instance —  while being restricted by state law from collecting money to pay for those services. Unsurprisingly, this has made it risky for unions to aggressively try to sign up new workers, lest they end up with a bunch of freeloaders.

Right-to-work laws, if they were ever enacted in Canada, would operate somewhat differently here. Central to Hudak’s plan is to do away with the Rand Formula, a 1946 ruling by Supreme Court Justice Ivan Rand on a bitter dispute at Ford, which upheld the right of unions to collect dues from non-union members.

Many labour analysts suggest that as a legal precedent, the Rand Formula has been so widely accepted in Canada it would be a major impediment to adopting American-style right-to-work laws here. But according to David Doorey, a York University professor who specializes in labour and employment law, the Rand Formula is not actually a law. In fact, there are no laws, either federal or provincial, that either authorize or prohibit unions from requiring workers to join a union or pay dues as a condition of employment.

Instead, most Canadian unions have adopted the Rand Formula through a majority-rule model: If a majority of employees vote in favour of making union dues mandatory in their collective agreement, then it covers everyone. That includes even those who voted against paying dues since, the reasoning goes, they also get the benefits of union protection.

In Canada, Doorey says legislation that would force unions to provide free services to non-members could possibly violate the right of free association under the Canadian Charter of Rights and Freedoms. But that would largely depend on how such laws were written. “Hudak isn’t telling us what his law will do, so we can only speculate,” he says. “[But] the Charter raises a twist in the debate that does not exist in the U.S.”

While it might technically be possible for the Ontario PCs to pass a right-to-work law if elected, whether voters in the province are riled up enough about powerful unions to elect a party that wants to get into a bitter war with them is another matter.

The province has shed hundreds of manufacturing jobs in recent months, with many companies fleeing back to the U.S., so voters are certainly attuned to the issue. But a Harris/Decima poll from November conducted on behalf of the Canadian Association of University Teachers suggests an electorate that is deeply divided on the issue of unions, particularly in Ontario. On one hand, more than 40 per cent of those surveyed said unions have become too powerful and that they’d never want to join one. At the same time, more than half of voters said unions were a positive thing and that dues should be mandatory for all workers covered by a collective agreement.

Across the province, analysts say whether or not right-to-work laws resonate with voters will depend largely on how effective Hudak is in tying anti-union laws to the province’s economic woes. For instance, while historic union ties mean right-to-work likely wouldn’t play well with voters in Northern Ontario, that could change if Hudak can argue convincingly that powerful mining unions are scaring private investment away from developing the Ring of Fire, the $60-billion mineral belt in northwestern Ontario, says Lakehead University political scientist Nadia Verrelli. The future of the site has been in limbo since Cliffs Natural Resources announced it was suspending its $3.3 billion development project last year. “If he’s committed to it, there’s a way to spin it about companies investing in the Ring of Fire,” she says. “But I do think it would be disingenuous.”

Doorey thinks the PC’s pitch is aimed at harnessing voter anger against the perceived power of public sector unions, since only 15 per cent of private sector jobs in Ontario are unionized and that proportion has been steadily dropping over the years. In the vote-rich Greater Toronto Area, there is lingering anger over Toronto’s 2009 garbage strike, along with the clear appeal of Toronto Mayor Rob Ford’s campaign against the public service “gravy train.” Stories like the Maintenance and Skilled Trades Council charging the Toronto District School Board $143 to install a pencil sharpener, don’t help the union cause either, says York University political scientist Dennis Pilon.

But, he says, the voters who are up in arms about public sector unions aren’t always the same people who come out on election day. “It’s the same thing when people go out on the street and say they support Rob Ford. But do they actually show up to vote?” Pilon says. “Disciplined voters are often better informed and they won’t be as easily led by some of these hot-button issues. It then becomes of question of who can get those marginal voters to show up.”

With the latest polls suggesting all three provincial parties are running neck-and-neck, the Conservatives are in search of an issue that can hit the right notes with certain voters in key ridings — and it wouldn’t take much to topple the precarious Liberal minority government.

A union-busting campaign was never likely to go over well in manufacturing heavy Southwestern Ontario, where Brister was running. But despite coming a close second to the NDP in the 2011 provincial election, Brister wasn’t considered to have much of a shot at the seat time around, says University of Windsor political scientist Lydia Miljan.

Several political commentators suggested that Brister’s Twitter outburst might have just been an easy way to for him to drop out of the race as the Conservative candidate, while also scoring some points in the region for a future run at political office. “What he was really trying to do was put his personal electoral interest above that of the party,” says Miljan. “It really wasn’t on a lot of people’s radar until Dave Brister did what he did. Now it’s turned into a provincial story.”

Even so, on his way out the door Brister suggested the Conservative caucus is itself deeply divided over the right-to-work issue. Hudak’s reluctance to delve into the details of any proposed legislation is also a likely sign the party still isn’t sure of how to sell an anti-union law to voters.

It wouldn’t be the first time the Ontario PCs have strayed from a message of fiscal conservatism into wedge issues that come to dominate an election: John Tory’s proposal to fund religious schools, or Hudak’s attack on sex ed classes, are a few that have backfired on the party in recent years. Right-to-work laws may just be the kind of divisive issue the Liberals and NDP have been waiting for. If that’s the case, Brister may just have just handed Hudak’s opponents their silver bullet.