Broader-Based and Sectoral Bargaining in Collective-Bargaining Law Reform: A Historical Review

Compelling evidence exists that centralized bargaining structures, including broader-based and sectoral bargaining (bbb), offer significant benefits to workers, such as higher levels of collective-agreement coverage, better labour standards and labour-market integration for vulnerable workers, reduced unemployment, and reduced wage inequality.¹ However, bbb was not the subject of significant postwar labour law reform discussion in Canada, outside of Québec, until the 1990s. Coinciding with economic and political changes that posed critical challenges to the labour movement, this decade saw a wave of interest in the introduction of bbb arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later that decade.² None of these reviews resulted in substantial bbb amendments to labour legislation.

Since then, and despite the continuing decline of private-sector unions, bbb did not re-emerge as an important reform issue until the Changing Workplaces Review (cwr) of Ontario's Labour Relations Act (olra) and Employment Standards Act (esa) commenced in 2015.³ bbb gained significant attention in the cwr process, and was also an issue in the subsequent labour law reform processes undertaken in Alberta and British Columbia. However, bbb proposals or recommendations were adopted in none of these instances.

Why, despite bbb's clear benefits to labour and the dire state of private-sector unionism in Canada, did the labour movement not collectively press for bbb reforms? This article explores this conundrum. It begins by briefly describing the concept of bbb and noting the distinct experience of private-sector labour relations outside of Québec in this regard. It then traces the history of bbb as an issue in each of the labour law reform exercises across jurisdictions in English Canada that took place between the late 1980s and early 2019, examining the context in which these issues arose and identifying both key bbb proposals and challenges to these proposals. It concludes with an analysis of the failure of efforts to incorporate bbb proposals into labour legislation and an assessment of the key challenges to adopting significant bbb reforms in the future.⁴

Broader-Based and Sectoral Bargaining

Canadian labour legislation reflects the Wagner model, which is characterized by decentralized bargaining structures: highly fragmented bargaining units centred on bargaining between a union and a single employer at the individual workplace level. Decentralization is, in turn, associated with reduced union bargaining power and lower rates of collective-bargaining coverage, lower labour standards for vulnerable workers, higher unemployment, weaker labour-market integration of vulnerable workers, and greater wage inequality, in contrast to more centralized systems in which bargaining occurs at sectoral, industrial, or even national levels, as is common outside of North America.⁵ Moreover, in countries with enterprise-level bargaining, collective-bargaining rates and union density are not only low but declining, and where enterprise bargaining replaces more centralized arrangements, bargaining coverage rates fall substantially.⁶

In addition, decentralized Wagner model systems relying on a statutory certification process for access to collective bargaining are criticized as effectively precluding many workers – particularly precarious workers – from accessing statutory collective bargaining.⁷ In contrast, bbb systems commonly provide more liberal access to collective-agreement coverage than certification-based models. Consequently, bbb systems may be accessible to workers for whom the certification process is an effective barrier to collective bargaining.⁸

Workers and unions are not the only parties that may benefit from bbb. Labour relations boards have expressed a preference for certifying larger bargaining units, minimizing fragmentation and avoiding a proliferation of units, recognizing that broader-based labour relations structures benefit employees, employers and contribute to more stable labour relations.⁹ Benefits to employees include greater worker mobility; common employment conditions across an enterprise; reduced focus on wage competition; and possible reduction of the contracting out of work. Employers benefit from greater administrative efficiency and from employer organization among smaller firms to counterbalance union power...