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This article was published 8/7/2015 (2554 days ago), so information in it may no longer be current.
It is no secret the Harper government is hostile to organizations unsympathetic to the government. This has been especially true for Canada's unions. No federal government in modern history has been so quick to weaken the ability of workers to strike or to effectively bargain.
Last week, with the Senate's passage of Bill C-377, the Conservatives have taken that hostility one step further and utilized the federal government's tax powers to undermine one of its chief civil-society opponents.
Under the bill, which amends the Income Tax Act, labour unions will be required to disclose all transactions and all disbursements over $5,000 and all salaries over $100,000. The legislation imposes steep obligations on unions: to outline annual assets and liabilities, statements of income, loans and annual income. Unions must also declare funds spent on political activity, lobbying, administration, education and training, legal fees, and a host of other areas. Revenue Canada is then obligated to post those expenses on a public website.
This, in effect, is using the tax system to destabilize a political opponent, and it raises important questions about the neutrality of administrative agencies such as Revenue Canada.
There are also serious constitutional problems with this legislation. First, C-377 wades into one of the most prominent provincial powers in the Constitution. In 1925, Canada's highest court ruled labour relations fell under the property and civil rights powers of the provinces. Since then, the provinces have taken primary responsibility for the regulation of labour-related matters. With C-377, the federal government appears to be using its tax powers to regulate in an area outside of its jurisdiction.
Second, by forcing unions to declare financial information on a public website, the federal government has handed employers a substantial advantage during collective bargaining. Employers will now be able to gauge the strike-readiness of a union at crucial moments of negotiations, thus undermining strike votes or other such measures designed to pressure employers to settle an agreement. By extending this power to employers, however, the government may be violating Sec. 2(d) of the Charter of Rights and Freedoms, which protects the freedom of association rights of Canadians. In 2015, the Supreme Court of Canada ruled in Mounted Police Association of Ontario (MPAO) v. Canada. The Supreme Court ruled government cannot "substantially interfere" with a meaningful process of collective bargaining that seeks to "disrupt the balance between employees and employer that Sec. 2 (d) seeks to achieve." There is a plausible argument C-377 violates these principles.
Finally, during the parliamentary hearings on the bill, many of the government's supporters stated C-377 provided individual union members with a genuine financial picture over how union dues were spent.
Backbench MP Russ Hiebert, the bill's sponsor, said it is meant to assist unions to become more "transparent and accountable." In Hiebert's estimation, posting expenses will empower workers and the public "to gauge the effectiveness, financial integrity and health of Canada's unions." Certainly these are lofty goals; few people would oppose efforts to make organizations -- be it the Prime Minister's Office, the Senate, the public service, or even the private sector -- more accountable and transparent.
But it was clear that for many anti-union supporters, it is legitimate for unions to spend dues for collective-bargaining purposes but illegitimate and frivolous if spent on political activity. Yet, is it possible to easily separate these two measures?
In 1991, the Supreme Court addressed this very question in a case about the constitutionality of Ontario's mandatory dues structure (the so-called Rand formula). Under the Rand formula, workers must financially support a union, but are not required to join that organization. While three of the seven justices were critical of what they termed the "compelled association" of the Rand formula, the court still held there was no plausible way to separate the usage of union dues because both bargaining and political activity contribute to the "the spirit of solidarity" that builds "democracy in the workplace."
In other words, for collective bargaining to work, unions must be free to struggle both in the community and at the bargaining table.
It seems clear this amendment to the Income Tax Act is designed to make these activities significantly more difficult.
Charles Smith is an assistant professor of political studies, St. Thomas More College, University of Saskatchewan. He works on areas related to labour relations, constitutional law and Canadian politics
Twitter @Profsmithstm
