Fudge Et GlasbeekThe Legacy

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Judy Fudge; Harry Glasbeek, The Legacy of PC 1003, 3
Canadian Lab. & Emp. L.J. 357 (1994-1995)
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THE LEGACY OF PC 1003
Judy Fudge and Harry Glasbeek*
Order-in-Council PC 1003, which was implemented by Mackenzie King's
Liberal government in 1944, signalled the adoption of a Wagner-style collective
bargaining scheme as the key element in Canadian labour relations policy. Despite
various refinements and amendments to collective bargaining legislation across Can-
ada, PC 1003 has provided the basic statutoryframework for labour relationsfor the
past fifty years. In their paper, Fudge and Glasbeek evaluate the legacy of PC 1003.
They recognize that it represented a fundamental and positive change in Canadian
labour relations policy; the government compelled employers to recognize and to
bargain with duly elected representatives and/or trade unions. But they argue that,
despite the progress represented by this step, PC 1003 was not intended to alter the
balance of power radically, that is, to ensure trade unions better agreements and/or to
guaranteestrong constraintson managerialprerogatives.
By locating PC 1003 in the broader political and economic context of World
War II and the immediate post-war reconstructionperiod, Fudge and Glasbeek iden-
tify the inherent structural limitations in the scheme. They chronicle how labour
relations board policies regarding bargaining unit determination and certification
entrenched a fragmented bargaining structure, reinforced the sex segregation of the
labour market and promoted a specific form of responsible trade unionism. The logic
of the assumption that collective bargaining was to reflect an atomized, privately
organized market system made PC 1003 particularlyinapposite to the public sector,
they maintain. Fudge and Glasbeek argue that this helps to explain why it has been
relatively easy for governments to roll back public sector collective bargainingrights.
They also consider why the Canadian labour movement has reacted to increased
labour market competition in the 1980s and 1990s by calling for reforms to the PC
1003 model which will enhance union bargaining rights, rather than endorsing a
wholesale revision of the legislativeframework. They suggest that unions have tended
to identify their success both in increasing their membership and in bargaining
improved terms and conditions of employment from 1944 to the mid-1970s with the
legislative framework. This ignores the extent to which favourable economic con-
ditions (protective trade barriersand managed competition) were a pre-conditionfor
effective trade union organization and collective bargaining. Fudge and Glasbeek
conclude that recent changes in the Canadian labour market, which include the
proliferation of small firms, the expansion of precarious employment and increased
competition, draw attention to the fundamental problem with the union movement's
strategy of maintainingor upgradingthe PC 1003 model.
* Judy Fudge and Harry Glasbeek teach law at Osgoode Hall Law School.
358 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [3 C.L.E.L.J.]
1. THE ARGUMENT
In the fifty years which have elapsed since Order-in-Council PC
100.3 - the Wartime Labour Relations Regulations - was introduced as
Canada's adaptation of Wagner Act-style statutory collective
bargaining,l it has been amended, polished and re-polished many
times. The overall effect of those changes has been two-fold.
The first has been to improve the ability of workers to form
unions and to enter into enforceable collective agreements. This has
been necessary because PC 1003 never did away with the underlying
values and assumptions 2 inherent in capitalist relations of production,
in particular that individual, anarchic economic activity, rather than
collective economic and political actions, should remain the key to the
creation of overall economic and political welfare. Trade unionists
have never been entitled to more than the enjoyment of limited, in-
secure privileges. As a consequence, they have needed repeated legis-
lative and administrative help.
The second effect of the frequent upgradings of the PC 1003
model has been to bolster the notion that this scheme, with the assump-
tions and values it embeds, is the working class's best defence to the
onslaughts mounted by Canadian capital. In large part, the moder-
nization and improvements have been viewed in this way because
statutory collective bargaining, modelled on PC 1003, continues to be
perceived as something of an unnatural phenomenon in our political
economy. Its maintenance suggests a resistance to, and reversal of, an
earlier status quo, and, therefore, a major step forward for workers in
their struggle with capital. This positive view of the model has been
reinforced because collective bargaining has yielded some concrete
gains for workers. It is this understanding which informs labour's con-
temporary politics: as workers' rights are under attack, much of or-
ganized labour's response is to preserve their upgraded PC 1003 en-
titlements.
We believe that it is a serious error for unions to concentrate their
efforts on attempts to regain the ground they feel they have lost in
respect of statutory collective bargaining and to attempt to polish and
I Wartime Labour Relations Regulations, PC 1003, February 17, 1944.

2 This useful phraseology, which captures the sense of the significance of ideology,
and law's relation to it, which is at the centre of our arguments, is taken from
J. Atleson's, Values and Assumptions in American Labor Law (Amherst: Univ. of
Mass. Press, 1983).
THE LEGACY OF PC 1003 359
improve the PC 1003 model, rather than change it radically. We are

sympathetic to, and analyse, the pressures which push unions in the
wrong direction: these pressures are the legacy of PC 1003. It is our
view, however, that the inherent limitations built into PC 1003 con-
stitute a clear and present danger to Canadian workers today.
2. STRUCTURED LIMITATIONS BUILT INTO PC 1003

At the outset, we want to make it clear that we believe that PC
1003 did represent a fundamental and positive change in Canadian
labour relations policy. For the first time in Canada's history, the
government compelled employers to recognize and to bargain with
duly elected representatives and/or trade unions. From the workers'
perspective, this constituted a movement from having a right to state
their interest in being represented by a union to having an enforceable
legal right to have their chosen representative treated as a union by
their employer. There was no longer any need to use collective
economic muscle - always seriously limited by the common law - to
obtain the right to bargain collectively with employers.
But, despite the progress represented by this step, PC 1003 was
not intended to alter the balance of power radically, that is, to ensure
trade unions better agreements and/or to guarantee strong constraints
on managerial prerogatives. The underlying, unquestioned assumption
of PC 1003 was that the touchstones of the then existing political
economy were to remain intact. The enhanced right to collective bar-
gaining was to detract as little as possible from the idea that individual
private sector entrepreneurs - possessed of the legal right to deploy
their property as they chose - were to remain the motor of the political
economy. This starting point has had important consequences for in-
stitutionalized collective bargaining in Canada. In particular:
(a) Bargaining Unit Designation Policies

In exchange for cementing the employers' legal obligation to
recognize a freely chosen trade union for the purpose of collective bar-
gaining, unions were manoeuvred into giving up whatever capacity
their collective bargaining power had to insist upon bargaining struc-
tures that suited them. Labour relations boards were granted the ex-
clusive authority to certify a group of employees defined by the board
as the appropriate bargaining unit. These boards developed certifica-
tion and bargaining unit designation policies which, functionally, con-
fined the scope of effective unionization to core industries, such as the

mass production ones and the resource-extraction, construction and
transportation sectors. 3 The boards' policies made it extremely dif-
ficult for workers in small workplaces in the competitive and service
sectors to wield enough bargaining power to secure a collective agree-
ment. Collective bargaining did little to mediate the effects of frag-
mentation and competition which characterizes much of the Canadian
labour market.
(b) Women Workers

By 1944, when PC 1003 was introduced, some women came to
occupy positions in the labour market which, until then, had been con-
fined to men. The need to maintain high levels of productivity during
the war years - when many men were unavailable - forced an in-
creased reliance on women workers in male-centred industries, al-
though the overwhelming number of women remained in traditional
female occupations and women-dominated industries. 4 More impor-
tantly, collective bargaining legislation based on PC 1003 did nothing
to preserve the gains made by some women in core industries during
World War II after the war ended. To the contrary, instrumental post-
war labour market policies facilitated the active expulsion of women
workers from the core industries into either the competitive or service
sectors. These policies were buttressed by the PC 1003 certification
processes which impeded the extension of effective unionization to the
secondary labour markets, markets which were increasingly populated
by women. Thus, employers were given access to a segmented and
gendered labour market which enabled them to reduce labour costs in
the periphery, while simultaneously meeting some of the demands of
the unions which represented male workers in the core.
3 J. Fudge, "The Gendered Dimension of Labour Law: Why Women need In-
clusive Unionism and Broader-Based Bargaining," in L. Briskin & P. McDermott
(eds.), Women Challenging Unions (Toronto: Univ. of Toronto Press, 1993)
231-248.
4 E. Scheinberg, "The Tale of Tessie the Textile Worker: Female Textile Workers
in Cornwall During World War II" (1994) 33 Labour/Le Travail 153 (less than I
in 6 women held jobs in manufacturing even during the war); R. Pierson &
M. Cohen, "Educating Women for Work: Government Training Programs and
Women, before, during and after World War II" in M. Cross & G. Kealey, eds.,
Modern Canada, 1936s-1960s (Toronto: McClelland and Stewart), 206;
A. Forrest, "Women and Unions: What's PC 1003 Got to Do with It?" University
of Windsor, Faculty of Business Administration, 1994, available on request.
(c) Public Sector Employees

The logic of the assumption that the model was to reflect an
atomized, privately ordered market system made PC 1003 inapposite to
the public sectors. Its eventual, and necessarily modified, application
to the public sectors was bound to lead to distortions in the administra-
tion, application and scope of the model. This largely explains why it
has been relatively easy for governments to attack their own workers'
rights.
(d) Differential in Political Power Between Capital and Labour

The endorsement of the idea that economic welfare was to be
created primarily by the individual action of private actors, rather than
by the state, meant that the scheme reinforced the idea that the
economic spheres and the political spheres are distinct and separate.
This supported the notion that workers could not use their economic
power in a collective way to obtain political advantage. To do so they
would have to act as collectives, something which is anathema to an
individualistic, liberal political system. By contrast, an employer, ac-
ting as an individual, could, by a threat to withhold its investment,
sway political decision-making in a way that no individual worker
could. The existing differential in political power between capital and
labour was endorsed by the PC 1003 model. It leaves workers at a
disadvantage when, as is the case today, employers use their
economic-political clout to attack workers' electoral-political state-
supported rights.
(e) Unions as "Managers of Discontent"
In order to gain the benefits offered by PC 1003, namely to get
recognition for a union by a certification process rather than by
reliance on economic struggles, the trade union movement had to ac-
cept that it would be a "responsible" movement. Unions had to agree
not to question the basic tenets of a political economy based on private
property ownership, an ownership to be exercised with the employers'
prerogatives over it still basically unfettered. They became managers
of discontent.
These constraints on possibilities for the working class, built into
the PC 1003-derived legislation, became largely invisible over time for
a variety of interrelated reasons.
The legislative model provided by PC 1003, and the subsequent

reforms to it, provided some real benefits to unions and the workers
they represented. The ability of a certified bargaining agent to obtain a
collective agreement, which was, from an internal perspective, the test
of the model's effectiveness, was enhanced through a series of legis-
lative amendments. 5 The increasingly sophisticated grievance arbitra-
tion process to deal with every-day disputes enhanced the "rule of law"
flavour given to capital-labour struggles. Moreover, the legislation
preserved and increased the bargaining clout of those trade unions
which organized and represented the workers in the core sectors during
World War II, and addressed some of the residual impotence of collec-
tivized workers in the more competitive sectors. 6 In the result, during
the unusually long sustained period of relative prosperity for capitalism
(circa 1950-75), major trade unions did reasonably well for their mem-
bers. Their success supplemented the ideological attraction of the
scheme. All of these advances in terms of participatory rights and
economic clout militated towards hiding the inherent constraints in the
system. In particular, they did much to undermine the view that
employers and workers have an inherent conflict.
Right from the start, PC 1003 was compatible with the basic no-
tions of a mature liberal polity. It reflected the well-developed under-
standing of liberals that, given the imperfections of a market economy
in which there was a particularly distorted division of wealth, private
individual bargaining often led to distributional outcomes which were
likely to cause unjustifiable immiseration and, perhaps, political unrest.
Further, ethical considerations of a liberal kind recognized that workers
who spent so much of their lives at work should be entitled to exercise
some control over their conditions. These beliefs - held by the
theorists and policy-makers who designated themselves 'liberal in-
dustrial pluralists' - had led to the propagation of the idea that workers
should be given a measure of countervailing power to overcome the
difficulties of an unmediated market. 7 To these people, constraints
5 Such amendments include the provision of improved remedial powers for ad-
ministrative agencies in respect of what we call unfair labour practices today.
6 The former, for example, by the refining of what is meant by good faith bargain-
ing, the latter by the more recent first contract arbitration provisions and anti-scab
legislation.
7 The liberal pluralists, of course, were building on the institutionalists who had
made many of these same arguments in an earlier period. For a succinct account
of the evolution from institutionalism to industrial pluralism, see E. Tucker, "In-
which stemmed from giving primacy to private property and private

ordering were not constraints at all but, rather, the inevitable limits on
what is possible in a free and democratic society. To them, therefore,
the fetters embedded in PC 1003 were invisible because they were not
seen as the products of struggles between the agents of antagonistic
8
classes.
But, invisible though they were to many people and forgotten
about as they were by others, 9 constraints had been built into PC 1003.
They had to be; after all, PC 1003 was not manufactured out of whole
cloth. Collective bargaining legislation came with the baggage of a
century or more of judicial antagonism to trade unionism which had
been used by employers and government to develop a powerful anti-
collectivist ideology. While PC 1003 did off-set some of the uglier
aspects of the earlier entente, it was also influenced by these under-
standings.
3. THE POLITICS OF THE COMPROMISE

(a) Introduction
The common law constructed a labour relations system based on
the values associated with private ordering through private, individual
contract-making and the unfettered deployment of private property. In
dustry and Humanity Revisited: Everything Old is New Again," (1991) 36

McGill L.J. 1481.
8 Giving some countervailing power to workers, therefore, was enough because it
gave better participatory rights and distributional outcomes. While Keynesianism
was slow to come as a graft onto the export-led growth machinery of the
Canadian political economy, a social net was developed in an ad hoc way during
the 25 years or so following the post-war period; see H.J. Glasbeek, "Labour
Relations and Law as a Mechanisms of Adjustment" (1987) O.H.L.J. 179. By the
mid-1960's, then, the liberal pluralist school could hold that, as even the workers
who could not protect themselves by collective bargaining under PC 1003 deriva-
tives had enough material safeguards and equality of opportunity in respect of
employment, it was safe to argue that the worst imperfections of the private
market had been overcome and that legislative fairness in treatment meant that
the ethical needs of all workers were now being met at an adequate level. See
H.W. Arthurs, "Developing Industrial Citizenship: A challenge for Canada's
Second Century", (1967) 45 Can. B. Rev. 786; Task Force on Labour Relations,
CanadianIndustrial Relations FinalReport (Woods Task Force) (Ottawa: Privy
Council, 1968).
9 Including many trade unionists who were satisfied with the progress their mem-
bers were making in the core sectors and with their recent political legitimacy.
this context, collective organization and action by workers was easily

repressed by a willing judiciary and by politicians when times called
for it. There were inevitable struggles by workers to improve their lot.
They sought to reduce the competition amongst themselves, competi-
tion generated by the dictatorship of individual contract-making. Oc-
casionally, they argued for a different set of social relations. All of this
spawned reformist pressures within the system which led to periodic
ameliorations. These improvements, more often than not, took the form
of putting constraints on the judiciary's right to adhere to its notion that
it was entitled to devise devilish and novel remedies to protect the
0
sacrosanct nature of individual contract-making.'
What workers had been unable to obtain prior to the commence-
ment of the Second World War, however, was the right to have their
representatives recognized without a fight and to have their collective
agreements, if any, enforced. Further, they had been unable to have
much influence on the way in which labour markets were structured.
From this perspective, PC 1003 was a large step forward. Collective
bargaining legislation gave workers a legally protected right to have
employers recognize their freely chosen agent and to compel the
employer to bargain with that agent. Further, any agreements reached
were to be legally enforceable and the rights of the employer to lock-
out, and of the workers to strike, were to be immune from repressive
laws when negotiations for an agreement were taking place. None of
this had been available to workers before.
10 The story of the judiciary's explicit anti-collectivist behaviour is well-known:

every time unionization reared its head, courts pushed it back; if unions got some
legislative relief, courts were only too willing to find a loophole in the statute, see
W. Wedderbum, The Worker and the Law, 3d ed. (Penguin, 1986) and I. Christie,
The Liability of Strikers in the Law of Torts: A Comparative Study of the Law in
England and Canada (Kingston: Ind. Rel. Centre, Queen's University, 1967).
Sometimes this phenomenon is ascribed to the crude, instrumental class bias of
judges. While this may be an accurate enough characterization of some judges'
personal sentiments, the argument here is that the judiciary's role as a protector
of individualism and private property-private contract as basic structural com-
ponents of capitalism has dominated its decision-making. This explains the
trilogy/strike cases heard under the Charter: despite a well-known, formal union-
promoting public policy and despite the constitutional guarantee of freedom of
association, the Supreme Court of Canada still cannot bring itself to defend
collective activities threatening the private property - private contract regime; see
J. Fudge, "Labour, The New Constitution and Old Style Liberalism" in Labour
Law under the Charter,(Kingson: Queen's Law Journal and Industrial Relations
Centre, Queen's University, 1988) 61; H.J. Glasbeek, "Contempt for Workers"
(1990) 29 O.H.L.J. 1.
The increased economic and political strength exercised by the

labour movement during World War II forced the federal government
to accede to the demand for collective bargaining legislation. The war
required a huge expansion in Canada's industrial production, thereby
dealing labour a set of new bargaining chips. A number of forces
converged to increase trade union power.l 1
During the Depression, the craft-dominated Canadian union
movement was challenged by industrial unions, who tended to embrace
more radical politics. In the United States, the Wagner Act had helped
to promote the recognition of industrial unions in large scale en-
terprises. This form of organization spread to Canada. Simultaneously,
the Co-operative Commonwealth Federation (CCF), an explicitly
socialist-inspired electoral party, appeared on the scene.
With the advent of war, the federal government was faced with
having to channel productive forces to meet war-time needs. The deci-
sions as to what to produce and the timing of production could not be
left to the private ordering of the anarchic market. Stability in produc-
tion also had to be ensured. Thus, the federal government assumed a
direct role in productive activities. This unprecedented government
intervention in the economy lent resonance to the arguments made by
the more radical unionists and the CCF that the competitive model
should be greatly modified or jettisoned.
PC 1003 has to be placed in this broader political and economic
context. Compulsory collective bargaining, a demand shared by the
entire labour movement, was a necessary concession. Without collec-
tive bargaining legislation the federal government would not be able to
ward off attacks from the political left. Moreover, collective bargaining
was an acceptable, albeit grudging, compromise for business because
PC 1003 left it open for the administrators of the war-time planning
regime to return to the employing classes the essential prerogatives
they had enjoyed in the pre-war years.
Even so, PC 1003 did not come without a struggle. When the war
increased workers' bargaining power, the employers' and the
government's initial and instinctive response was to use coercive
measures to bring labour to heel. Only when these failed did positive
II For a more detailed discussion of these forces see J.A. Fudge, "Voluntarism and
Compulsion: The Canadian Federal Government's Intervention in Collective
Bargaining From 1900 to 1946", D. Phil Thesis, University of Oxford, 1987,
Chapters 2 and 3.
reform come on the agenda. This grudging approach to granting more

standing and power to workers moulded the reform offered and laid the
ground for attacking it almost as soon as it had been offered.
(b) First, Coercive Control

When war was declared the federal government intervened
directly, both to allocate resources for war production and to control
inflation. C.D. Howe, a prominent industrialist and a member of the
Cabinet, was appointed by Mackenzie King to head the ministry in
charge of the government's wartime procurement and production
programmes. Howe appointed business executives who were on leave
from private industry to run the multitude of administrative agencies
under his authority. These administrators, who were known as the
"dollar-a-year men" since they continued to be paid on a voluntary
basis by their former employers after their secondment by the federal
government for a fee of $1, were notoriously anti-labour. With Howe,
they shared the view that union "agitators" were the cause of industrial
unrest. 12
As it did during World War 1, the federal Cabinet's first labour
relations initiative was to extend the IndustrialDisputes Investigation
Act (IDI Act), which imposed compulsory conciliation and a cooling-
off period, to all industries essential for the prosecution of the war. 13 A
variation on Bennett's "iron heel of repression"14 was also used to
repress workers. The Defence of Canada Regulations, issued in Nov-
ember 1939, not only threatened all individuals' basic civil liberties,
12 See, Robert Bothwell & William Kilboum, C.D. Howe (Toronto: McClelland and
Stewart), 1979, at 162 et seq.; J.W. Pickersgill, The Mackenzie King Record, Vol.
I (Toronto: University of Toronto Press, 1960) at 228 et seq.
13 On November 8, 1939, the Cabinet issued PC 3495 to this effect, using the
authority of the War Measures Act, 1914, 5 Geo. V, 2nd Sess., c. 2. In addition
to extending the Industrial Disputes Investigation Act (IDI Act), 6-7 Ed. VIII,
1907, c. 20, to industries engaged in war work, this Order-in-Council empowered
the Minister of Labour to designate industries as war industries. By 1941, 85 per
cent of all industry fell within the scope of the IDI Act; L. MacDowell,
'Remember Kirkland Lake' The Goldminers' Strike of 1941-42 (Toronto: Univ.
of Toronto Press, 1983) at 22.
14 A. Blair Neatby, The Politics of Chaos: Canada in the Thirties (Toronto: Mac-
millan, 1972), 63; J.H. Thompson & Allen Seager, Canada 1922-1939, Decades
of Discord (Toronto: McClelland and Stewart, 1985) at 226.
but were used to harass the trade union movement. 15 Finally, in order
to induce organized labour to accept a voluntary strike ban, the govern-
ment decided to follow the World War I example of producing a state-
ment of principles to govern industrial relations. It issued an order
which declared its belief in the principle that employees should be en-
titled to bargain with employers through trade unions or other
representatives of their choice for the purpose of concluding a collec-
tive agreement. But the government was careful to employ permissive
language, lest there was any doubt that the principles should be im-
plemented voluntarily. 16 The Canadian Manufacturer's Association
17
opposed even this mild exhortation.
By the spring of 1941, the economy reached full employment.
The government's major domestic preoccupation became controlling
rising inflation, which it identified with the demands made by the
stronger and more militant labour movement. Increasingly, the
government relied on repressive measures to resolve labour disputes as
it added layers of conciliation as a precondition for legal strikes, im-
posed compulsory wage controls, and adopted coercive labour alloca-
tion measures. Paradoxically, the thrust of the wage control policy was
to maintain the pre-war wage structure, which emphasized skill and
regional differentials, while, at the same time, the government clung to
18
a policy of promoting voluntarism in collective bargaining.
Organized labour was dissatisfied with the federal government's
labour policy. As Millar pointed out:
Ottawa's policy of holding down wages while evading union recognition meant
that the issues became indistinguishable to the ordinary worker. High wages and
union security, multi-plant bargaining, the fear of the underpaid that their war-
time bonuses and jobs would vanish, were issues which were inextricably mixed
up in a labour policy that attempted to maintain the status quo ante, added war-
15 For discussions of how the Defence of Canada Regulations, PC 4750, September

12, 1940, were used both against the Communist Party and organized labour, see,
R. Whitaker, "Official Repression of Communism During World War II" (1986)
17 Labour/Le Travail 135-66; G.M. Grube, "Those Defence Regulations" (1941)
20 Cdn. Forum 304-306 at 304.
16 PC 2685, June 19, 1940. National Archives of Canada (NAC), RC 27, vol, 254,
file 721.02:1, Memorandum submitted by the Assistant Deputy Minister of
Labour, March 5, 1940, 1.
17 NAC, MG 28, 1 230, Accession No. 83/38, Minutes of the C.M.A.'s Industrial
Relations Committee, November 9, 1939.
18 J.A. Fudge, "Voluntarism and Compulsion", above, note 11, Chapter 3.
time controls on labour mobility, and had created

19
a system of incentives in war
industry side by side with a rigid wage freeze.
(c) Second, Reformist Response to Militancy

Labour's dissatisfaction with the lack of evenhandedness in the
government's labour policy erupted in 1943. By the end of that year,
the percentage of non-agricultural paid workers in unions had risen to
22.7 per cent of the workforce, representing a doubling in union mem-
bership since the outbreak of war. 20 Moreover, the greatest increase in
trade union membership was in the strategically placed manufacturing
industries which were organized by the Canadian Congress of Labour
unions. 2 1 Exercising their unaccustomed power, trade unions struck in
order to achieve workers' demands. Trade union militancy, as
measured by strike action, reached a level comparable only to that ex-
perienced during the labour crisis of 1919. In 1943, one out of every
three workers engaged in strike action, and the number of working
days lost quadrupled from the 1939 figure of 224,588 to 1,041,198.22
The same year, 13,000 workers in the crucial steel industry went on
strike, both to protest the government's wage control policy, which
was aimed at the maintenance of regional wage rates, and to achieve
industry-wide, multi-employer bargaining. In the short term, King had
no option but to promise that the National War Labour Board, which
had been appointed to administer the wage control policy, would con-
duct a public inquiry into, and issue a report on, labour relations and
wage conditions in order to get workers back to work. This report
would form the basis of the government's revamped labour policy.
Labour's militancy also took an electoral-political turn, symbol-
ized by the success of the CCF. In August 1943, the CCF not only
won 34 seats in the Ontario election to become the official opposition
19 Frederick David Millar, "Shapes of Power: The Ontario Labour Relations Board,
19.44-50", Ph.D. thesis, York University, 1980, 138.
20 Between 1939 and 1943 trade union membership increased from 359,000 to
66.5,000; M.C. Urquhart, ed., Historical Statistics of Canada, 2d ed., (Ottawa:
Statistics Canada, 1983), Series El 75-177.
21 On September 9, 1940, the All Canadian Congress of Labour and the Canadian
Committee for Industrial Organization merged to form the Canadian Congress of
Labour. The Trades and Labour Congress, which was dominated by craft unions,
was the other major union central.
22 Laurel Sefton MacDowell, "The Formation of the Canadian Industrial Relations
System during World War Two," (1978) 3 Labour/Le Travailleur 175, 195, and
Urquhart, above, note 20, Series E 190-197.
party, but it also won two of the four federal by-elections. The CCL
embraced it as the political arm of labour. Moreover, a September
public opinion poll indicated that, federally, the popularity of the CCF
was slightly greater than that of the Liberals and of the
Conservatives. 2 3 The government's role in directing the war economy
was shattering traditional assumptions about the limited economic role
of the state and was replacing them with the belief that "the state could,
and should, assume responsibility for sustaining high levels of employ-
ment and economic growth." '2 4 A national survey conducted in 1943
" 'seemed to indicate' that the public opinion in favour of nationaliza-
tion of private enterprise 'was now close to a majority.' "25 What the
CCF was offering workers was a post-war reconstruction programme
which would take account of the permanent alteration to the Canadian
economy and which would reflect the new role of the state. From the
government's perspective, the general mood of the country suggested
that a fairly radical settlement would be needed to achieve a popular
consensus which would allow it to stay in power.
In this context, labour's demand for collective bargaining legis-
lation based on the 1935 U.S. Wagner Act, and the 1943 Ontario and
British Columbia legislative adaptations,26 was persuasive to the
government. While the Canadian Manufacturers Association (CMA)
claimed that Wagner Act-type legislation would only serve to increase
the industrial unrest which was caused by "irresponsible, law-defying
unions", 2 7 the Liberal government believed that regulated capitalism
might be sold as a substitute for public ownership. Compelling
employers to engage in voluntary collective bargaining was to be an
23 A. Finkel, "Origins of the Welfare State," in L. Panitch (ed.), The Canadian

State, (Toronto: Univ. of Toronto Press, 1977) 344-370 at 360. The C.C.F.
received 29% of popular support and Liberals and Conservatives received 28%
each.
24 D. Wolfe, "The Rise and Demise of the Keynesian Era in Canada: Economic
Policy, 1930-82", in Michael S. Cross & Gregory S. Kealey, eds., Modern
Canada, 1930-1980s (Toronto: McClelland and Stewart, 1984) 46-78 at 46.
25 R. Whitaker, The Government Party: Organizing and Financing the Liberal
Partyof Canada, 1930-58, (Toronto: University of Toronto Press, 1977) at 138.
26 National Labour Relations Act, 494 U.S. Stat. 4491 (1935); Collective Bargain-
ing Act, S.O. 1943, c. 4 and Industrial Conciliation and Arbitration Act, S.B.C.
1943, c. 28.
27 Proceedings of the National War Labour Board Public Inquiry into Labour
Relations and Wage Conditions (Ottawa: King's Printer, 1943), C.M.A. brief,
115-74. This view was also expressed by C.D. Howe and his $1 a-year-men.
essential element in ensuring organized labour's continued commit-

ment to an economic system in which the vast majority of economic
decisions were to remain in private hands.
The specific elements of the compulsory collective bargaining
regime which were finally embodied in PC 1003 were worked out in a
lengthy drafting process dominated by government departments. 28 In
bare bones, the Order-in-Council prohibited employers from interfer-
ing with trade unions and employees during organizing drives,
provided a certification procedure for unions supported by a majority
of employees in a bargaining unit designated by a board, and limited
the permissible use of economic sanctions to the period when a union
and employer were negotiating a collective agreement. Many of the
gains offered to trade unions depended for their realization on the
procedures and policies yet to be developed by the tribunal charged
with the administration of the new collective bargaining regime. The
administrative procedures provided for in the Order were sufficiently
flexible, and the enabling language sufficiently broad, to allow the Na-
tional Wartime Labour Relations Board a great deal of discretion.
Despite some caveats, for the most part organized labour sup-
ported PC 1003. In part, this support must be understood in light of the
government's threat that, if the PC 1003 model was rejected by labour,
it would impose compulsory arbitration of interest disputes by a third
party rather than permit such disputes to be settled by a system of
compulsory, if limited, collective bargaining between the parties. 2 9 On
the other side of the fence, faced with a fait accompli, the CMA ad-
vised its members that the Wartime Labour Relations Regulations were
probably quite a good thing since the proposed regime of collective
bargaining might be expected to head-off something worse: a continua-
30
tion of extensive government intervention in the economy.
Initially, then, PC 1003 appeared to herald a compromise which
could secure industrial peace. In 1944, the year it was introduced, the
number of days lost due to strikes dropped to 490,139 from the pre-
vious year's high of 1,041,198. Moreover, on the political front,
labour's support for the CCF fractured and, to a large extent, shifted to
28 .1.Fudge, "Voluntarism and Compulsion", above, note I at 261-278.

29 NAC, MG 30, A94, 39, 3112A, J.L. Cohen, "PC 1003 and an Effective Wartime
Labur Policy", 3.
30 Labour Gazette, July 1944, 927-928.
the Liberals. King's new political consensus for the post-war period
31
carried his government to victory in the 1945 election.
4. THE POSTWAR STRUGGLE: THE LIMITS OF

COLLECTIVE BARGAINING
(a) Legalized Collective Bargaining

As noted, much hinged on the policies to be developed and im-
plemented by the National Wartime Labour Relations Board. What
that Board delivered was less than what the language of the Order-in-
Council had seemed to offer.
The Board decreed that, to obtain certification, a trade union had
to demonstrate that the majority of employees in a unit designated as
appropriate by the Board had chosen it as a preferred agent. 3 2 What
was rejected were other democratic voting calculations which would
have made trade union certification easier, for instance, that the
majority of people voting, rather than a majority of all the eligible
employees, would suffice. 33 The imposition of this hurdle was all the
more important because, from the beginning, PC 1003 envisaged an
opt-in system, that is, a system in which trade unions would have to
prove that they were entitled to represent workers. The opt-in require-
ment reflected the starting assumption that individual contract-making
remained the norm, collectivization a privilege. The Board's imposi-
tion of its comparatively onerous voting requirements exacerbated this
starting problem for collectivism.
The Board also developed policies which favoured local plant-
wide bargaining units, rather than enterprise, industry or regional bar-
gaining units. Legally, this approach embedded more of the old, exist-
ing fragmentation than workers and their unions wanted to be retained.
As we shall emphasize, the Board's policies left their mark on trade
union structure and politics.
31 Fudge, "Voluntarism and Compulsion", above, note II at 303-305.

32 United Electrical,Radio and Machine Workers of America and Packard Electri-
cal Co. Ltd. (Jan. 12, 1945) C.L.L.C. 21.
33 This was not only the citizens' existing electoral right, but it also was the
mechanism chosen by Ontario for its short-lived adaptation of the Wagner Act
scheme, and found in the Wagner Act regime itself; Fudge, "Voluntarism and
Compulsion", above, note II at 316-318.
Despite trade union opposition, the Board decided that grievance

arbitration was not to be available if a dispute arose in respect of a
matter not specifically provided for in the written collective
agreement. 34 The assumption was that, as had been the case before PC
1003, the employer started with plenary power over all of its assets,
including workers. Accordingly, unless workers could show that they
had explicitly caused the employer to give up some of this power, the
employer was not to be constrained in its decision-making. Today this
seems unexceptional, but what now seems normal was then contested
by workers. They lost and are still suffering because of it.
Despite the limitations, both embedded and read into the wartime
collective bargaining regime, most industrial pluralists have celebrated
35
PC 1003 for its legal institutionalization of a role for unions.
Dominant trade unions, as we shall see, were largely supportive of this
regime even though the rules imposed on workers and their organiza-
tions who sought to benefit from the regime were understood to be
fetters early on by some of the commentators. Thus, in 1956, Logan
observed that "[t]he powerful weapon of the strike as an aid to negotia-
tion through militant organization, was weakened in its usefulness
where the approach to recognition had to be certification." 36 Board
certification policies tended to cement the bargaining structure that
emerged out of World War II. More recently, Panitch and Swartz have
argued that, with the advent of PC 1003, it was crucial, above all else,
for unions to know the law, to move from "mobilizing and organizing
towards the juridical arena of the labour boards" and that this "tended
to foster a legalistic practice and consciousness in which union rights
appeared as privileges bestowed by the state rather than democratic
34 United Electrical, Radio and Machine Workers of America and PackardElectri-

cal Co. Ltd., above, note 32; Fudge, "Voluntarism and Compulsion", above, note
II at 321-24.
35 As Woods put it, with PC 1003, the rule of law replaced overt conflict because
(i), the law recognized that collective agreements established a structure of rights
and obligations for the signing parties and those they represented and (ii), arbitra-
tion of rights' disputes, which had been developed by the parties themselves on a
voluntary basis, became a statutory requirement and a right, making enforcement
of collectively-won rights by means of strikes and lock-outs illegal. H.D. Woods,
Labour Policy in Canada,2d ed. (Toronto: Macmillan, 1973) at 346.
36 H.A. Logan, State Intervention and Assistance in Collective Bargaining (Tor-
onto: Univ. of Toronto, 1956) at 76.
freedoms won and to be defended by collective struggle". 37 Organiza-

tional drives and activities were no longer said to be based on the need
to end class oppression but, rather, justified by claims of legal entitle-
ments.
The collective bargaining system which emerged at the end of
World War II recognized trade unions, but it also expected them to
mediate the interests of their members and those of a system which
was based, ultimately, upon the state's support for private property and
contractualism. In short, the tendency for trade unions to become
managers of discontent was given a push by the scheme, 38
a tendency
which became more of a reality with the passage of time.
But, all of this is much clearer in hindsight. At the time, unions
had different hopes. What now, to unions, seem natural and inevitable
by-products of the regime, were not seen in this way when the shapes
and possibilities of the collective bargaining schemes had not taken
final form.
(b) First Resistance, Then Setbacks
As the war ended, unions sought to entrench and improve their
newly won rights. Employers tried to push the clock back. This led to
epic struggles. Labour used strikes, first, to make up for the wartime
wage freezes, and second, to consolidate its position. The administra-
tive labour agencies and governments set out to constrain the new ter-
rain of contest by defining the scope of permissible collective bargain-
ing and reconstituting labour markets. A fight ensued.
In 1945, 4,516,390 work days were lost to strikes - a figure not to
be surpassed for two decades. 3 9 Two strikes reflected labour's most
pressing post-war demands. The 1945 Ford strike in Windsor centred
37 L. Panitch & D. Swartz, "Towards Permanent Exceptionalism: Coercion and

Consent in Canadian Industrial Relations" (1984) 13 Labour/Le Travail 133-157,
at 145.
38 See, H.J. Glasbeek, "Voluntarism, Liberalism and Grievance Arbitration: Holy
Grail, Romance and Real Life" in G. England, ed., Essays in Labour Relations
Law (Don Mills, Ont.: CCH Canadian Ltd., 1986) at 57. While this is not the
place to elaborate, the argument is that unions, with the help of grievance
arbitrators, came to accept residual managerial powers, a refined system of
disciplinary discretion for employers, and the union's duty to control spontaneous
worker resistance and strikes; as well, they helped to impose a technocratic
approach to dispute settlement. For a fuller discussion, see D. Drache & H.J.
Glasbeek, The Changing Workplace (Toronto: Lorimer, 1992) Chapter 7.
39 Urquhart, HistoricalStatistics of Canada,above, note 20, Series E 190-197.
on the auto workers' union's demand for a union shop in order to pro-
vide it with some institutional stability, something which all unions
wanted. In the Stelco strike of 1946, the steelworkers' union sought
industry-wide bargaining to overcome regional disparities in wage
rates. Like all unions they were eager to eliminate wage competition
as much as possible. Both strikes yielded some success for the unions
involved. The Ford strike was resolved by arbitration. At the same
time as the arbitration award gave the union something of what it
asked, the award also imposed a burden on trade unions generally, one
which weighs heavily to this day. The steelworkers also were success-
ful, but that success served as a warning to administrators that they
would have to act positively to put the genie back in the bottle, that is,
to stop workers from believing that consolidated bargaining should be-
come the norm under the PC 1003 regime.
(c) Union Security

The Ford strike was, in many ways, a microcosm of some of the
broader tensions and conflicts which shaped the labour movement and
industrial relations during the decade following the end of World War
II. What it is most famous for is having given birth to the "Rand
formula", which was named after the judge of the Supreme Court of
Canada, Ivan Rand, who wrote the award that settled the strike. Al-
though there already was a tendency for other conciliators to grant
trade unions a compulsory dues check-off clause, 40 Rand's award was
truly innovative in that it provided employers with a reason for sup-
porting this form of union security. As a quid pro quo for the compul-
sory dues check-off, Rand decreed that unions were to behave respon-
sibly. 'What this meant derived from Rand's appreciation of what col-
lective bargaining both assumed and entailed.
Rand's major premise was that "[a]ny modification of relations
between the parties here concerned must be made within the
framework of a society whose economic life has private enterprise as
its dynamic."41 His minor premise was that the federal government had
accepted the social desirability of the collectivization of workers and
collective bargaining where workers sought them. In his view, unions
needed to become strong institutions in order to "secure industrial
40 Fudge, "Voluntarism and Compulsion", above, note 1 I at 330.

41 Ford Motor Co. of Canada Ltd. and InternationalUnion United Automobile el.
al (Jan. 29, 1946) C.L.L.C. 159.
civilization within a framework of labour-employer constitutional law

based on rational economic and social doctrine". 42 Rand believed that
unions needed institutional security and that a compulsory dues check-
off would provide this. Moreover, this solution was fair to individual
employees, since all employees, unionized or not, benefitted from the
union's representation.
To ensure that this institutional security did not strengthen the
growth of irresponsible trade unions, Rand imposed two conditions on
unions' enjoyment of the financial security which would flow from a
compulsory dues check-off. First, a secret ballot of all the employees
within a bargaining unit was to be a precondition which had to be met
to make industrial action legal. Second, and more importantly, a union
would have to repudiate all wildcat strikes, especially those in breach
of a collective agreement. This second requirement satisfied not only
the well-known demand of Canadian business, but also met a concern
expressed by government officials during the PC 1003 drafting
process. The Minister of Labour had complained that the "greatest evil
is the lack of recognition by unions of the inviolability of contracts
with employers." 4 3 Rand's award also satisfied the unions' demand for
some form of institutional security, although it did not give them the
greater security of a union shop which they had sought (and which had
been won by workers at Ford in the U.S.A.).
(d) Industry-wide Bargaining
At Stelco, the steelworkers' union's specific concern was to es-
tablish an industry-wide wage rate which would break the
government's policy of maintaining pre-war regional differentials, a
policy which had been made an explicit part of the wage controls im-
posed during the war. 44 The steelworkers had a tough nut to crack
because the National Wartime Labour Relations Board already had im-
posed bargaining structure rules which had erected hurdles which had
to be cleared by unions seeking multi-employer bargaining. 45 Under
42 Strong unions would, Rand stated, also ensure that communist elements would
not grab hold of the union which bargained with the enterprise. Ibid., at 160.
43 NAC, RG 27, 3520, 3-26-10-11, pt. 1, H. Mitchell to R.W. Gladstone, M.P.,
August 1946.
44 Order in Council, PC 8253, Oct. 24, 1941; Fudge, "Voluntarism and
Compulsion", above, note 11 at 194-195.
45 H.A. Logan, Trade Unions in Canada (Toronto: Macmillan, 1948), 266-267;
Millar, "Shapes of Power", above, note 19 at 291-297.
those rules, both the employees and the employer were required to in-
dicate a preference for such a structure and the union had to obtain a
majority vote in every plant concerned, as well as obtain a majority of
the aggregate of all the employees in the would-be consolidated bar-
46
gaining unit.
While the steelworkers managed to secure an industry-wide bar-
gaining structure for themselves as a result of the Stelco strike, the bias
towards the already-embedded fragmented bargaining unit structure
meant that most unions were unable to achieve anything which ap-
proximated industry-wide bargaining. 47 Plant-by-plant bargaining be-
came the norm. Pentland rightly observed that "instead of working
towards the generalization and equalization of power and wage rates,
[the collective bargaining system that developed] accentuated the dif-
48
ferentials of power and anomalies of disparate wage rates."
(e) Reconfiguring the Labour Market: Bringing Gender Back In

In the immediate post-war period, the Canadian state's brokered
compromise between capital and organized labour presented capital
with a problem: labour potentially had more power. Capital's goal was
to contain unionism and control the costs of labour. The embedding of
bargaining unit fragmentation, as set out above, helped the employers'
cause greatly. At the macro level, it was instinctively understood that a
systematic segmentation of the labour market would put employers in a
position to concede higher wages to some organized workers in the
core sectors 4 9 while, at the same time, a large category of unorganized
low-wage workers would remain available. This would help blunt the
46 Variants of this tactic to stop multi-employer bargaining have remained popular

to this day; see the discussion of the Michelin Bill and of the British Columbia
experience in Drache & Glasbeek, The Changing Workplace, above, note 38 at
62-63.
47 Woods, Labour Policy in Canada, above, note 35 at 25. Although multi-
employer certifications were uncommon under PC 1003, they were issued more
frequently under the wartime regulations than under the subsequent peacetime
federal legislation. According to Edward Herman, between 1944 and 1948 the
Wartime Labour Relations Board issued 13 multi-employer certifications; see his
Determination of the Appropriate Bargaining Unit (Ottawa: Canada Department
of Labour, 1966) at 121 and Appendix G.
48 H.C. Pentland, A Study of the Changing Social, Economic and Political Back-
ground of the Canadian System of Industrial Relations, Draft Study prepared for
Task Force on Labour Relations, Ottawa: Privy Council, 1968 at 170.
49 Which would help legitimate the entente and would not harm oligopolistically-
placed employers very much.
threat of more unionization and would help lower aggregate labour

costs. Two levers were used to deepen the kind of labour segmentation
which favoured capital as a whole as well as some, mostly male,
workers in particular.
On one side, the government reaffirmed its widely shared belief
that men should be the primary wage-earners. From its beginnings the
Canadian labour market had been structured along a sexual division of
labour.50 Women bore the overwhelming burden of work within the
household, and when they either chose or were compelled by economic
necessity to obtain waged work, government policies, employer
preferences and trade union practices combined to restrict their oppor-
tunities. Skills, job classifications, occupations, industries, wages and
benefits were gendered with the result that women were confined to the
51
most precarious, insecure and low-paid forms of employment.
Despite the protests of some women and a few trade unions, the sexual
division of labour was treated as natural and inevitable.
The changes wrought to the labour market during World War II
threatened to undermine the sense of inevitablity surrounding the
sexual division of labour. Women's labour market participation rate
increased during the war as policies designed to facilitate women's in-
tegration into production were introduced. 5 2 Despite only a gradual
relaxation in the sex-based segregation of classifications and occupa-
tions during the war, some women workers obtained a toe-hold in the
53
new mass production industries which they did not want to lose.
The belief that men should be the primary wage-earners was
given support by governmental policies which were designed to reduce
50 Marjorie Griffin Cohen, Women's Work (Toronto: University of Toronto Press,

1988); Julie White, Sisters and Solidarity (Toronto: Thompson Educational
Publishing, 1993), Chapter 1.
51 Eric Tucker, Administering Danger in the Workplace, (Toronto: University of
Toronto Press, 1990), Chapters 4 and 5; M. McCallum, "Keeping women in their
place: The minimum wage in Canada," (1986), 17 Labour/Le Travail 29-56;
R. Russell, "A fair or minimum wage? Women workers, the state, and the
origins of wage regulation in Western Canada," (1991) 28 Labour/Le Travail,
59-88; J. Ursel, Private Lives, Public Policy (Toronto: Women's Press, 1992);
Pamela Sugiman, Labour's Dilemma (Toronto: University of Toronto Press,
1994); P. Armstrong & H. Armstrong, The Double Ghetto, 3d ed. (Toronto:
McClelland & Stewart, 1993); P. Phillips & E. Phillips, Women & Work, rev. ed.
(Toronto: James Lorimer, 1993.)
52 R. Roach Pierson, "They're Still Women After All" (Toronto: McClelland &
Stewart, 1986).
53 Pierson & Cohen, "Educating Women for Work", above, note 4 at 208-243.
women's, especially married women's, attachment to the labour force.

Daycares were closed, civil service regulations barring women from
the federal government work were renewed, and the income tax legis-
lation was amended to create a disincentive for married women to
work for pay. 5 4 To steer women away from the relatively well-paid
jobs some had enjoyed during the war, women were encouraged to
undertake training in such areas as domestic service, household
management, waitressing and hairdressing. Canada's full-employment
policy was specifically limited to men. Employers either got rid of
women workers or confined them to lower-paid and lower status jobs.
Unions helped to strengthen sex-based segregation in many workplaces
by negotiating sex-biased classifications and seniority lists which
operated to the disadvantage of women workers. 55 The creation of a
low-wage sector, one which would have a drag-down effect on the
conditions of all workers, was specifically gendered. As Ursel ob-
serves, "women constituted the largest pool of such labour in Canada
and were, therefore, a key component in the segmentation strategy of
'56
capital."
The other lever used to deepen labour market segmentation was
PC 1003. As seen, the model had given discretion to administrators,
57
the labour relations boards, to define appropriate bargaining units.
Trade unions did little to push the boards to use their discretion to
reject and change the existing sex-biased occupational structures in the
labour market. To the contrary, they organized workers on the basis of
the existing understandings of gender relations which, by and large,
they shared with employers. 58 In practical terms, the PC 1003 model
became relatively inaccessible to women workers.
54 A. Porter, "Women and Income Security in the Post-War Period: The Case of
Unemployment Insurance, 1945-1962" (1993) 31 Labour/Le Travail Ill.
55 For an excellent preliminary study of the ways in which trade unions used the PC
1003 model to the disadvantage of women workers, see Forrest, "Women and
Unions", above, note 4.
56 J. Ursel, Private Lives, Public Policy, above, note 5 1at 239.
57 Almost as important a use of boards' discretion was the political laundering of
trade unions. As they defined "trade unions", they were able to disqualify
nationalists and left-wing unions, thus creating their version of "responsible
unionism", i.e., business unions; see Drache & Glasbeek, The Changing
'Workplace, above, note 38 at 68-70 for a short discussion and citation of the
literature.
58 Forrest, "Women and Unions", above, note 4.
Moreover, the boards' preferred structure of employer-by-

employer bargaining also had an enormous impact on women
workers. 5 9 Workers in small workplaces in a competitive sector were
bound to find it difficult to wield enough bargaining power to secure a
collective agreement, even if they were unionized. This was (and still
is) a strong disincentive to undertaking costly organization drives. As
a result, workers in the competitive small business sectors - dispropor-
tionately women - rarely enjoyed the full benefits of statutory collec-
tive bargaining.
By the 1950s and 1960s, trade unions were bringing home the
bacon for male workers in the dominant sectors of the economy. Most
other workers paid a price as unions in these dominant sectors accepted
the prevailing political entente. Unionists with a political vision which
challenged the existing relations of production had been purged and
business unionism flourished. 60 The wage gap between unionized and
non-unionized sectors increased. Moreover, the number of occupations
where collective bargaining made economic sense decreased, while oc-
cupations which structurally (and culturally) were not thought to be
61
suitable for unionization proliferated.
The die had been cast: fragmented, narrow economic bargaining,
a 'responsible' trade union movement and a gendered labour market
had been either generated or reinforced by PC 1003 and its implemen-
tation in the early, formative years. Workers, especially women, are
paying the price now. But the inherent problems were not obvious for
a while.
5. TURNING LIMITED PC 1003 BARGAINING INTO AN

IDEALIZED LIBERAL DEMOCRATIC INSTITUTION
The circumstance of labour in post-war Canada was dramatically
different to what it had been prior to the passage of PC 1003. Symboli-
cally, labour had won respect for its organizations; concretely, more of
its needs were being met by legally embedded institutions, rather than
59 Fudge, "The Gendered Dimension of Labour Law", above, note 3.

60 See note 57 and Irving Abella, Nationalism, Communism and CanadianLabour
(Toronto: University of Toronto Press, 1973) and John Lang, "A Lion in a Bed of
Daniels: A History of the International Union of Mine, Mill and Smelter Workers
in Sudbury Ontario, 1942-62," Univeristy of Guelph, M.A. Thesis, 1970.
61 Ursel, Private Lives, Public Policy, above, note 51 at 242.
by reliance on fortuitous market conditions. 6 2 The statutory collective

bargaining regime, which had its genesis in PC 1003, was perceived to
be associated closely with these improved conditions for workers. The
working classes believed that they now were in a position to make
political and economic demands using the new status and strength
derived from the collective bargaining scheme. Still, while generally
better economic times, combined with the availability of statutory col-
lective bargaining, bestowed benefits on many workers, progress was
neither automatic nor universal.
First, the benefits of collective bargaining were not diffused
equally throughout the economy. As the Woods Task Force was to
point out later, the regime never had been meant to act as a national
incomes policy. Regional differences, inter-industry variations - par-
ticularly between resources and mass-assembly sectors and all other
sectors - and differentials between the unionized and the non-
unionized were not redressed. 6 3 Second, workers were always playing
catch-up in Canada's boom-and-bust economy. Typically, at a time
when demand for Canada's primary resources would increase, workers
already had agreed to a particular level of benefits, that is, they were
bound by the terms of an agreement reached in less propitious times.
Often, by the time that they were in a legal position to make their
demands to catch up with what had been a fast-rising cost of living
during the boom times, there already was a downturn in the demand for
Canada's commodities and associated products. This lag always
created frictions and tended to lead to illegal collective action by
workers. Third, the combined effect of resource export-led growth and
the impact of the boom-and-bust nature of the economy on collective
bargaining, was that, in the aggregate, productivity outran wage gains
consistently. For example, Ostry and Zaidi show that, between 1950
62 There also had been an ad hoc development of social welfare measures which
enabled observers to say that, by the early 1970s, "an institutional welfare state
existed in Canada"; see Social Planning Council of Metropolitan Toronto, "The
Rise and Fall of the Welfare State" in D. Drache & D. Cameron, eds., The Other
MacDonald Report (Toronto: Lorimer, 1985) 51.
63 Task Force on Labour Relations, FinalReport, above, note 8. Indeed, the Woods
Task Force found that, if anything, inequality might have been augmented as a
result of collective bargaining. But, as the regime was merely meant to modify,
rather than question, the primacy of anarchic market relations (see para. 37)
statutory collective bargaining was not to be blamed for failing to redress such
inequalities.
and 1968, workers' wages in the manufacturing sectors rose by 58%

while their productivity grew by over 97%.64
Despite these shortfalls of collective bargaining, some workers
did very well under collective bargaining, all workers benefitted from
having some of the advantages associated with the gradual implemen-
tation of the rule of law in collective agreements and (slowly) else-
where, and all workers were encouraged to believe that they had the
right to organize and could hope to do better than they did. This was a
powerful set of ingredients which, in a general way, promoted the no-
tion that the pre-war status quo, during which wealth and power could
only be questioned by those who were willing to risk punitive reprisals,
no longer held sway.
Canada emerged from one of its recurrent down-cycles in the
early sixties. A combination of factors - which included a devaluation
in the Canadian dollar, the conclusion of the Auto Pact and large wheat
sales to the U.S.S.R., as well as increased sales for Canadian oil com-
panies - gave collectively organized workers the economic leverage to
play catch-up with a vengeance. Equipped with an invigorated sense
of the legitimacy of making economic demands and imbued with the
widely-shared rebellious political spirit of the time (which included
that of the social movement in Quebec, the civil rights' struggle in the
United States, the worker movements which were to lead to the dramas
in Prague and Paris in 1968), workers did not care whether or not the
demands which they made of employers were timely, that is, whether
or not the stability of production which was to be ensured by the "no
strike, no lock-out" requirement of legislated collective bargaining,
was undermined by their conduct. The fear of economic irrespon-
sibility and political unruliness became palpable amongst the ruling
elites.
Reflexively, employers reached back for the coercive instruments
which PC 1003 had not asked them to give up. PC 1003 merely
provided that, under certain circumstances, workers were to be given
some countervailing power by modifying the employers' private pro-
perty and private contracting rights. If these circumstances did not
obtain, the old rules were meant to continue to govern. Consequently,
in the 1960's, employers still could go to the administrative boards or
64 S. Ostry & M.A. Zaidi, Labour Economics in Canada, 2d ed. (Toronto: Macmil-
lan, 1979) at 215-217. This pattern was constant; see D. Drache & H. Glasbeek,
The Changing Workplace, above, note 38, especially Chapter 2.
to their old individualism-promoting friends, the courts, to get relief

when workers collectively acted outside the ambit of the labour rela-
tions statutes' protective shield. A spate of applications for injunctive
relief from the courts ensued. The employers' idea was to force
workers to behave responsibly, that is, to force them to recognize that
their collectivized rights were a limited privilege in a free market
polity, one which the law could not permit to be abused.6 5
These employer attempts at coercion, therefore, threatened to un-
dermine the carefully cultivated idea that the rules of the old, brutish
capital-labour relations system had been committed to the dustbin of
history. Worse, these attempts at repression seemed likely to be unsuc-
cessful as workers continued to strike, legally and illegally, regardless
of the ease with which employers seemed to be able to obtain injunc-
tions from the courts. Politicians and serious policy-makers quickly
understood that individual employers did not comprehend the danger
their self-assertive behaviour presented to the overall well-being of the
Canadian economy and polity which had hammered out a compromise
which had enhanced stability and productivity; more, it had contained
labour costs relatively well while buying organized labour's acquies-
cence to such constraints. It made sense, therefore, to reinforce this
compromise. 66 A plethora of formal inquiries and commissions was
established to deal with the clashes of the 1960s.
The Rand and Carrothers 6 7 inquiries into the ways in which in-
junctions were granted came out with reports which stressed the need
for procedural reform which would make it more difficult for
employers to get injunctive relief against striking unions. The idea was
to put rules into place which would inhibit lower court judges from
acting on what were assumed to be their crude anti-union biases. 6 8 The
65 For a logging of the increased use of injunctions in Ontario, see A.W.R. Car-
rothers & E.E. Palmer, Report of a Study on the Labour Injunctions in Ontario
(Toronto: Ont. Dept. of Labour, 1966).
66 For a frank statement to this effect, see J. Crispo & H.W. Arthurs, "Industrial
Unrest in Canada: A Diagnosis of Recent Experience" (1968) 23 Rel. Ind. 237.
67 Royal Commission Inquiry into Labour Disputes, Ontario, (Rand), (Ottawa: CCH
Canadian, 1968); Carrothers & E.E. Palmer, above, note 65.
68 In Ontario, this kind of recommendation led to what is now section 102 of the
Courts of Justices Act, R.S.O. 1990, c. 43. In British Columbia, the attempt to
exclude the judiciary was even more far sweeping; see H.W. Arthurs, " 'The
Dullest Bill': Reflections on the Labour Code of British Columbia" (1974) 9
U.B.C. L. Rev. 280. Interestingly, the preferred view was that statutory collective
Woods Task Force 69 set out the justifications for the compromise
statutes which had been enacted on the basis of PC 1003 and which
were still worthy of support. It argued that obvious labour market
imperfections had required interventions by the state, such as the provi-
sion for a minimum wage and for more countervailing power for
workers. In such a scheme, strikes and lock-outs could serve as a
catharsis for the parties who, inevitably, would be involved in disputes
about distributional issues. Regulated disruptions served a valuable
purpose. Hence, responsible trade unionism had to be encouraged.
Wages and conditions of work could be left to be determined by what
were, basically, voluntarily reached arrangements. Individual em-
ployers, therefore, should not be allowed to use all of the powers
derived from their private property rights to stop workers from exercis-
ing their freedom of choice. Put positively, organizational activities
were to be given support by granting the administrative labour rela-
tions boards more remedial powers. Further, the idea that individual
contract principles, derived from unmodified private property concepts,
were apposite to legitimately conducted collective bargaining should
70
be negated as much as possible.
If these recommendations were implemented (and they were to
some extent), workers could be expected (even forced) to abide by
their freely chosen agent's decisions and agreements because they had
the right to determine who should bargain on their behalf. The chosen
trade union, in return for improved organizational assistance and en-
hanced security, could be expected to keep its workers in line once an
bargaining was not seriously deficient and that the real problem lay with having
left too much discretionary power to the judiciary, an institution whose role was
dysfunctional given the premises of statutory collective bargaining. That is, the
basic structure of collective bargaining was not questioned by any of these
think-tanks and policy advocates.
69 See above, note 8.
70 Note that one of the most influential industrial pluralists, Laskin, was to write, as
an arbitrator, as an academic and as a judge, that individual contract ideas based
on individual property notions should play no part in collective bargaining. See
U.A.W., Local 458 v. Cockshutt Farm Equipment (1959), 9 L.A.C. 324 (Laskin,
arbitrator); B. Laskin, "Collective Bargaining and Individual Rights" (1963) 6
Can. Bar Jo. 278 (Laskin, academic); McGavin Toastmaster Ltd. v. Ainscough
(1975), 54 D.L.R. (3d) I (S.C.C.), (Laskin, C.J.).
agreement was struck, just as Rand had planned in 1946. 1 When all
this was added to civil and social welfare gains (eg. evolving human
rights legislation and enriched unemployment insurance), these
refonns suggested, as Harry Arthurs was to write, that a new industrial
citizenship had been developed. 7 2 From this vantage point, the reforms
to the PC 1003 model which followed the troubling 1960's made this
species of collective bargaining an essential component of the institu-
tions which were making Canada a truly mature liberal democratic
polity.
Such was the strength and popularity of, and the justificatory
framework generated by, the reforms of the PC 1003 model that public
sector bargaining took on the same look, even though the circumstan-
ces in which private sector collective bargaining was envisaged to take
place did not obtain in the public sector. Both the economic and the
political setting is different in these two spheres. In particular, the
activities of the agencies of government (which act as surrogate
employers in the public sector) are explicitly political whereas, in the
private setting, the enterprise of employers is exclusively, and nar-
rowly, economic. In the private sector, the market and the need to
make direct profit provide the logic for collective bargaining; there is
no equivalent in the public sector.
What this meant was that, while it seemed natural to give public
sector workers all the trappings of so-called free private sector collec-
tive bargaining - and between 1965 and 1973 all governments in Can-
ada did so - they could not be given the means to use them in the same
way. In the result, there was some political and economic empower-
ment of public sector workers but nowhere near as much as politicians,
commentators and public sector unions themselves thought there was.
Precisely because, in liberal democratic capitalism, elected govern-
ments hold themselves out to be responsible for the welfare of all
71 As the Woods Task Force's Final Report, above, note 8, pointed out, in para.
393, strikes and lock-outs served both as a catalyst and as a catharsis to parties
who had to learn to deal with inevitable distributional disputes while coming to
an understanding of their symbiotic (contrast conflictual) relationship. As if to
emphasize that the scheme was designed to retain the status quo in respect of real
power, the Final Report noted that the "no lockout, no strike" and grievance
arbitration system would ensure the maintenance of the "superior-inferior nexus
inherent in the employment relationship"; para. 291.
72 H.W. Arthurs, "Developing Industrial Citizenship: A Challenge for Canada's
Second Century", above, note 8.
citizens and accountable to all the electors, these governments' powers

are not to be legally fettered by special interest groups. Thus, while
adapting the same model on the surface - quasi-atomized employers
with which locally and freely chosen agents are to bargain - a great
number of important variations were written into the public sector
regimes.
Some employees are not allowed to bargain about certain
subjects, 7 3 some employees are given the alternative of striking or ac-
cepting a compulsory arbitrated award, 74 some employees are not
given the right to strike at all. 7 5 Further, governments have retained the
right to determine that, even if a public sector bargaining unit is given
the right to strike, some of its members should be designated as being
essential workers, that is, workers who must continue to deliver a
governmental service during a lawful strike by their bargaining unit
colleagues. Moreover, a government's assumed right and need to con-
tinue to look after the public's welfare makes it easy to pass legislation
suspending or abrogating a trade union's previously granted strike
rights. In the same vein, a government can always argue that, whatever
collective bargaining rights its workers have, these can justifiably be
curtailed to allow the government, not just to continue to deliver ser-
vices, but also to pursue a major policy, such as the reduction of infla-
76
tion or the balancing of the budget.
Still, the large-scale adaptation of the reformed private sector
model to the public sector setting was something of a progressive step.
But, while it was going to be some time before the coercive elements
which are integral to PC 1003-type collective bargaining were to re-
emerge in the private sector, there was no delay in the public sector.
Almost as soon as collective bargaining rights had been won by public
sector workers, governments began to undermine them. The fact that
the attack on workers' rights was waged primarily against public sector
73 For instance, federal public servants under the Public Service Staff Relations Act,
R.S.C. 1985, c. P-35 (PSSRA).
74 See, PSSRA, ibid.
75 As in Alberta and, until 1994, Crown employees in Ontario.
76 As the federal government explicitly argued in its factum to the Supreme Court
of Canada in P.S.A.C. v. R. (1987), 87 C.L.L.C. 14,022 (S.C.C.) when the
constitutionality of the 6 and 5 legislation, Public Sector Compensation Restraint
Act, S.C. 1980-81-82, was challenged. And it was the former NDP government's
political justification when it imposed its notorious Social Contract (that is, the
wage reduction and attack on job security of public sector employees) in Ontario.
workers is significant because, on the surface, this seemed to denote

that there had not been an abandonment of the public policy to support
PC 1003-type collective bargaining, certainly not in the private sector.
To be sure, the first major attack on collective bargaining rights
after the "halcyon days" of the period from 1968 to 197377 was the
Anti-Inflation Board (AIB) legislation of 1975 which applied to both
the private and public sectors. In its declaration that inflation, espe-
cially as led by wage demands, was reaching dangerous proportion, the
Trudeau government restricted collective bargaining rights by specify-
ing that wage increases were to be limited, as were price increases.
From the employing classes' point of view this was a remarkable suc-
cess. The Conference Board estimated that the three-year reign of the
AIB legislation had enabled employers to make 9.2% more profit than
they otherwise would have. Wage levels, on the other hand, were
7.7% lower than they otherwise would have been. 7 8 Not only was the
result pleasing, the trade unions' impotence was revealed by their in-
ability to take effective oppositional action. Caught by the logic of
atomized collective bargaining and the "no-strike, no lock-out" re-
quirement during the life of a collective agreement, trade unions could
not call for concerted withdrawal of labour by their members to oppose
the legislation. That is, the model effectively prevented the use of
79
economic power for political purposes.
77 For instances of the "good times" note that, in 1971 unemployment insurance
benefits were increased remarkably and that, in 1973, British Columbia passed
the most extensive adaption of the Woods Task Force recommendations to enrich
trade unions' collective bargaining rights; for an account of the unemployment
insurance improvements, see H.J. Glasbeek, "Labour Relations Policy and Law
.. " above, note 8.
78 Conference Board of Canada, Inflation and Incomes Policy in Canada, Ottawa,
May 1979; Canadian Department of Finance, Discussion Paperon Anti-Inflation
Policy Options, Ottawa, 1981.
79 This is not to say that unions did not try to resist. They took out a writ and
begged a court for relief, to no avail, of course; Reference re Anti-Inflation Act
(Canada), [1976] 2 S.C.R. 373. They also organized a general strike but,
because this was, per se, illegal (because it used collective economic power for
political purposes and because it required some workers to strike during the life
of their localized collective agreement), it was offered as a civil libertarian action,
a "Day of Protest", not a general strike, not an action which was part of class
solidarity.
6. THE EROSION OF PUBLIC SECTOR COLLECTIVE

BARGAINING RIGHTS
No doubt emboldened by the lack of political clout of organized
labour when faced with a massive attack on its rights, employers in-
creased the pressure on governments. This pressure has been main-
tained, even invigorated, in recent times. The argument has been that
the capital-labour relations' entente in Canada always was based on the
maintenance of a competitive model. The onset of developing tech-
nologies, the deregulation of financial transactions and the extraor-
dinary political developments throughout the world have led to an in-
tensification of competition for Canada's employing classes. As a con-
sequence, the capitalists' argument continues, the existing regulatory
schemes need to be modified to allow for successful participation in
this new, more globalized, competitive setting. In the long run, such
modifications will enure to the benefit of both the employing and
working classes. Governments should use less of the available capital
for investment than they have been; they should render fewer services;
if the services are truly necessary, they could/should be carried on for
profit purposes; governments should eliminate waste, make their ser-
vices leaner and meaner; they should remove some of the barriers to
investment and profit-making, such as trade barriers, the relatively rich
social net which includes minimum wage provisions and unemploy-
ment insurance, inflexible collective bargaining rights, and the like.
Most of all, they should stop cosseting their own employees.
While these arguments were not, and are not, uncontroversial,
they did, and do, have resonance, particularly the last one. Given the
rather reluctant acceptance that had been given to public sector collec-
tive bargaining entitlements, it must seem appealing to many govern-
ments, especially of the conservative hue (but by no means exclusively
so) to attack their own workers.
Panitch and Swartz8 ° have shown how, led by the federal govern-
ment with its famous "six and five" legislation in 1980, every govern-
ment in the land has followed suit and imposed income restraints on its
public sector workers. In addition, governments have made their
public sector workers targets as they seek to support the private
sector's economic restructuring plan. Sometimes the government
80 L. Panitch & D. Swartz, 2d ed. The Assault on Trade Union Freedoms: From
Wage Controls to Social Contract, (Toronto: Garamond, 1993).
workers' bargaining rights have been suspended for a certain period,

sometimes they have been abolished altogether or so many workers
have been designated as being "essential" that striking no longer makes
sense for a particular bargaining unit. As seen, one of the clear pur-
poses of these attacks has been to demonstrate to private sector
employers that they should not hesitate to use whatever rights they
have under private sector collective bargaining statutes to resist
81
workers' demands.
The social welfare net, always porous, has come under tremen-
dous pressure as governments have had to deal with the argument that
they should not only not raise taxes, but that they should try to lower
them in order to make Canadians more competitive. Accordingly, wel-
fare schemes no longer are to be funded at the levels they had been
before. As the welfare net comes under attack, one of the working
class's major tools with which to resist capital's demands is being
blunted. It is in this context that the great significance of the par-
ticularly vigorous attack on the unemployment insurance system can
best be understood. 82 As we write, these attacks are intensifying.
Assaults by governments on their own workers, while drawing
verbal criticism from private sector trade unions, have not generally
been seen by the latter as an attempt to undermine the collective bar-
gaining model. Indeed, in the 1970s at least, trade union leaders in the
private sectors seemed to be confident that the system was still work-
ing very well for them and would continue to do so. 83 In their con-
81 See note 76.

82 The stage was set by the McDonald Commission, Final Report, The Royal
Commission on the Economic Union and Development Prospects for Canada,
(Toronto: U. of T. Press, 1986), followed by the Forget Report, Report of the
Commission of Inquiry on Unemployment Insurance (Ottawa: Min. of Supply &
Services, 1986), and the Mulroney government's free trade-inspired attack on
UIC.
83 There was, perhaps, something of a "beggar thy neighbour" attitude. Many
private sectors trade unionists believe that public sector workers are "Johnnies
come lately", not really unionists at all. They are not seen as having played a part
in those working class struggles which are celebrated as epic events by private
sector trade unionists. All too often they are perceived as only having come to
collective bargaining when their own guaranteed security and the other benefits
of paternalism no longer compared favourably with what private sector collective
bargaining was yielding workers in the 1950's and 1960's. All of this is
necessarily speculative, but it does go some way towards explaining the way in
which the Ontario NDP government was able to say to private sector unions that
fidence they tended to under-estimate the extent to which the various

governments' attacks on their own workers were motivated by those
governments' desire to help private sector employers in their quest to
restructure the economy. It was, however, a natural enough response
for private sector unions to evince because the PC 1003 schema en-
sured that there would be a lack of articulation of the interests of
private sector and public sector unions. And, as we have seen, by
themselves, public sector unions were very poorly placed to resist these
attacks on them; their collective economic and political rights were
even more constrained than those of private sector unions. As a con-
sequence, public sector workers, no matter how heart-felt the suppor-
tive protestations of some private sector unions leaders may have been,
have been left to the mercy of neo-conservative governmental action.
One of the paradoxes of these developments was that, as con-
ditions in the private sector worsened by the conclusion of the various
free trade agreements, which caused many jobs to be lost, and by the
increase in deeper-biting competition, private sector trade unions
sought to enhance their collective bargaining rights. Here two related
points, both based on the arguments made in respect of the inherent
limitations of the PC 1003 model, arise.
First, a reprise: PC 1003 never abandoned the competitive market
model; it simply permitted the use of some collective power in an
atomized competitive market setting. The essential nature of the model
was that only the workers at one place of employment were to be given
collective bargaining rights; the market as structured, employer-by-
employer, was to remain. Only in those cases where the market was
oligopolistic or where employers were disadvantaged by the frag-
mented bargaining has the PC 1003 model been modified. Thus, in the
present context, when trade unions seek to refurbish the basic
employer-by-employer model embedded in PC 1003, they are not ad-
dressing one of their fundamental difficulties: increased competition
amongst employers. This brings up the second point.
It is understandable why the trade union movement is limited in
its vision. Successes came in the good economic times when there
were more protective trade barriers and there was less intense competi-
tion. But, rather than emphasise these reasons for their success during
it was now time for public sector unions to pay their dues as private sector
workers had paid more than their share. This had some resonance with some
private sector unions.
this period, unions tend to identify their relative success with the
operation of the reformed PC 1003 model, which was not being at-
tacked by employers or governments. This association makes unions
think that, if only they can enrich that model a little and adapt it to the
new economic circumstance, they will be able to defend themselves
against the effects of the sharpening competition on wages.
In part, this unarticulated set of premises is bolstered by the fact
that public sector workers lost ground at the same time as their collec-
tive bargaining rights were attacked viciously by their governments.
Rather than think through the fact that those collective bargaining
schemes were never like those in the private sector, there is a tendency
to believe that it is the undermining of private sector model-type bar-
gaining which is causing the public sector workers' difficulties.
As a result, Canadian trade unions are waging a fierce war to
bring PC 1003, in modernized form, back to what it considers to be its
former glory. As Palmer has noted: "Virtually the entire leadership in
the Canadian workers' movement of the post-1975 years [now] accepts
and lives to perpetuate the premises of the World War II settlement."
84 This is all the more peculiar because the revamping of the economy
at capital's behest is leading to such radical changes in labour market
structures that it is simply not conceivable that the PC 1003 model
could deal with the difficulties that workers are about to face.
7. THE ABYSS: LABOUR MARKET CHANGES AND PC 1003

This is not the place to detail the many ways in which the labour
market structures are changing. Some aspects can be asserted, how-
ever, because they are largely uncontroversial.
The number of people who participate in the work-for-wages
force is increasing, in large part due to the fact that wages and oppor-
tunities have been decreasing for people in the mass assembly,
resource and public sectors. As a consequence, the family wage has
been put under pressure. In addition, more women have entered the
work force, either because they cannot or because they will not rely
84 B. Palmer, Working Class Experience, 2d ed. (Toronto: McClelland and Stewart,

1992) 370.
5
upon a man's wage to support a dependent family. 8
Both the types of industries and the size of firms which employ
the majority of people are changing dramatically. There has been both
a shift in employment opportunities from the industrial sectors to the
86
service sectors and a huge increase in smaller-sized firms.
Many large corporations in the former industrial core have reor-
ganized, off-loading production to smaller firms through a variety of
complex contractual relations, including franchise arrangements, sub-
contracting pyramids and supply agreements. 8 7 The resulting growth in
employment in the small business sector is truly exponential. Between
1979 and 1989, businesses with fewer than 100 employees (the usual
definition of small business) created almost 90% of all growth in
employment in Canada. 88 More importantly, the size of the establish-
ment in which workers are being employed is continuously decreasing.
Between 1976 and 1984, 87% of all jobs created in Canada were to be
89
found in establishments employing fewer than 20 people.
These changes create great difficulties for workers. At the very
least, a more efficacious means to fight about work conditions for
85 By the late 1980's it took between 65 and 80 hours of work each week for a
family to earn what it took a single bread winner, who, typically, was a man, to
earn in a 45-hour week in the 1970's; G. York, "Family Life: Not enough money,
too much stress," The (Toronto) Globe and Mail, Al (3 January 1992). In terms
of the increase of women in the work-for-wages force, note that, by the 1990's, 6
out of 10 working age women, as compared with 7 out of 10 working age men,
were in the labour force, i.e., women's participation patterns and rates increas-
ingly approach those of men; further, women in the paid labour market now work
for longer periods than before; P. Phillips & E. Phillips, Women and Work., rev.
ed., (Toronto: Lorimer, 1993) at 35.
86 G. Picot, J. Baldwin & R. Dupuy, "Have Small Firms Created a Disproportionate
Share of New Jobs in Canada? A Reassessment of the Facts," Research Paper
Series, No. 71, Statistics Canada, Analytic Studies Branch, November 1994.
87 B. Harrison, "The Myth of Small Firms as the Predominant Job Generators,"
(1994) 8(1) Economic Development Quarterly, 3-18, at 4; for a description of
centralized control and decentralized work relations, see E. Reiter, Making Fast
Food: From the Frying Pan into the Fryer (Montreal: McGill-Queen's Univ.
Press, 1991). The recent fight to organize McDonalds in Ontario typifies the
difficulty created by this sort of arrangement. The well-known story of the
banking industry (see Drache & Glasbeek, above, note 38, for a citation of the
literature) is an illustration of the endemic problem in a different setting.
88 J. Manly (the Minister of Industry) & P. Martin (the Minister of Finance),
Growing Small Businesses (Ottawa: Ministry of Industry, 1994) at 3.
89 Urban Dimensions Group, Growth of the Contingent Workforce in Ontario Struc-
tural Trends, Statistical Dimensions and Policy Implications (Toronto: Ontario
Women's Directorate, 1989) at 7-8.
employees in small, dependent businesses, needs to be found. As it

stands, their conditions are effectively set by huge dominant corpora-
tions which, legally, are out of bargaining reach as a result of the one-
on-one logic of the PC 1003 model.
The diminishing size of the firm and the workplace, as well as the
shift in emphasis from resource and mass production to service in-
dustries, have had a downward effect on union density, even though
trade union membership may be increasing as labour participation in-
creases.
O'Grady has noted that, of every seven new jobs created in Ont-
ario, only one becomes a unionized one. 90 Still, in 1989, the overall
rate of unionization in Canada was 38%, which, in historic terms, is
very good. In firms with fewer than 20 workers, however, only 13% of
workers belong to trade unions. This is so because, as we have seen,
there is an increasing number of very small firms and the smaller the
firm, the harder it is (and the less sense it makes under the PC 1003
model) to unionize. Thus, in 1989, 56% of workers in firms with more
than 500 employees were union members; 50% of workers in firms of
between 100 to 499, and 32% of workers in firms with between 20 and
99 workers, were unionized. 9 1 As the larger firms are disappearing
from the economic landscape, union density obviously will be ad-
versely affected.
This, then, is the context which has caused unions to pursue rules
which make it easier to unionize. Emphasis has been put on better
certification and recognition processes, as well as better access to non-
unionized workers and better information about workers in order to
unionize them. That is, there has been a natural tendency to try and
make the PC 1003 model procedurally better from an organizing
perspective.
But, improvements in organizational procedures, even if they lead
to more unionization, are unlikely to make a great deal of difference.
As outlined, the problem is that people are going to be organized in
firms which are very small and these have little to offer workers by
way of extra economic or job security benefits, whether they have been
90 See J. O'Grady, "Beyond the Wagner Act; What Next?" in D. Drache, ed.,
Getting on Track: Social Democratic Strategies in Ontario (Montreal: McGill-
Queen's Univ. Press., 1991).
91 J. White, "Patterns of Unionization," in L. Briskin & P. McDermott, eds., Women
Challenging Unions (Toronto: Univ. of Toronto Press, 1993) 191-206 at 194.
organized or not. That is, to be unionized in that kind of situation is

not such a great advance. Of course, some segments of the trade union
movement are well aware of this. As unions have been forced to or-
ganize many more small workplaces than they used to unionize, 9 2 they
have been militating for improved bargaining clout. In particular, they
have obtained first contract arbitration in several jurisdictions, 9 3 and
they have been successful in obtaining anti-scab legislation in fewer
jurisdictions. 9 4 But, none of this can overcome the deep structural
problems created by the fact that the economy is being revamped and
wage competition is increasing while the trade union movement
remains fragmented in organization. That is, trade unions still cannot
use broad sympathy and other types of solidaristic actions, economic or
political; they are still restricted to employer-by-employer, ad hoc,
fragmented struggles for narrow economic gains.
The changes in the labour market draw attention to the funda-
mental problem with the union movement's strategy of the main-
tenance and/or upgrading of the PC 1003 model. What workers need
at the moment is some kind of consolidated bargaining structure, one
which enables them to take wages out of competition far more than the
collective bargaining statutes as administered presently permit. Of
course, it is true that a form of consolidated bargaining had been al-
lowed to emerge from time to time, but usually only when either a set
of employers was in an oligopolistic situation and tolerated it (as was
92 We cannot stop to address an endemic problem. The PC 1003 model, which is

premised upon workplace-by-workplace organization, made it illogical for trade
unions to organize the small employment setting. There was not much to be
gained by collective bargaining for workers in these settings. Further, the
obtaining of a collective agreement and the administration of it would be very
costly, while the dues which would be paid to the trade union were very small.
These disincentives were bolstered by the malestream nature of trade unions
which disinclined them to make much effort in the employment settings where
women predominated: see text at note 59, et seq.
93 In part, this is being granted by the legislatures and the administrative boards
because it legitimates them. The PC 1003 model does not, in theory, differentiate
between large and small employment settings, but if a large number of unions can
be certified and still not get an agreement, the legitimacy of the scheme is
brought into question. This has helped trade unions obtain first contract arbitra-
tion mechanisms.
94 Again, trade unions were able to obtain this when a political party was elected to
government which had a close alliance with the trade union movement: the Parti
Quebecois, and the NDP in Manitoba, Saskatchewan, British Columbia and
Ontario. Note also that some limited advances have been made in respect of
consolidated bargaining, successor rights and contracting-out.
the case in the automobile industry and in meat packaging for a long
time) or where employers were in a disadvantageous position because
the unions they dealt with occupied a monopolistic position (as was the
case in the construction industry). Intriguingly enough, when the
employers agreed to a bargaining scheme which unions wanted and
which could not harm employers, it was not enshrined in legislation;
where the employers needed it because they wanted to off-set working
class bargaining power, they got legislative support for the con-
solidated bargaining they sought. 95 Thus, as new economic conditions
are forcing some employers who previously had accepted consolidated
bargaining to restructure, they are able to go to labour relations boards
and have the consolidated bargaining entente undone. As Anne Forest
has shown, 9 6 changing conditions in the meat packing industry led to
such a successful demand by employers: labour relations boards helped
them change what used to be a national bargaining scheme into a
provincial employer-by-employer one. The fragmentation of broader-
based bargaining structures is also happening in steel and in pulp and
97
paper on the West Coast.
Of course, in a self-proclaimed liberal scheme, what is good for
the goose ought to be good for the gander. If employers can obtain
legal backing for consolidated bargaining when it suits them, so should
trade unions. Trade unions, in trying to reform the PC 1003 model,
have relied on this logic to enhance the possibilities for various forms
of consolidated bargaining-type protections.
Unions have looked for provisions which will stop employers
from contracting out bargaining unit work, that is, to stop them from
hiring people who will work for wages less than unions are able to
obtain through their collective power. Similarly, they have looked for
legislative protection against employers' unilateral introduction of
technologies which might lead to job changes and job losses. They
95 Legislative consolidated bargaining schemes were established in construction,

but not automobile or meat packing: J. Fudge, "The Gendered Dimension of
Labour Law," above, note 3 at 237-239.
96 A. Forrest, "The Rise and Fall of National Bargaining in the Canadian Meat
Packing Industry" (1989) 55 Rel. Ind. 393; see also Burns Meats Ltd. v.
U.F.C.W., Local 139, [1984] O.L.R.B. Rep. 1049 and D. Drache & H. Glasbeek,
above, note 38, Chapter 3.
97 Steel is particularly interesting because it will be remembered that it was the
steelworkers who, in the struggles after the Second World War, had fought for,
and won, the right to have consolidated bargaining in order to take regional wage
competition out of contention.
have demanded means to overcome the employers' use of legal devices

to alienate assets in such a way as to affect the rights of people who
have collective agreements, the so-called successor rights protection.
They have had some success on all these fronts. There have been some
minor improvements in successor rights and some very limited con-
straints on the employers' rights to contract out work. There has been
some, although little, advance in respect of the right of employers to
deploy technology as they see fit. 9 8 However, when workers have
sought legal means to overcome the difficulties created for them by
franchising (McDonalds) or pyramiding, 99 they have met with scant
success. And workers employed in sectors where small firms
predominate, that is, where there is fierce competition on wages and
where unionizing one firm at a time is of little help, have met with
failure in their efforts to have this serious problem resolved. The for-
mer Ontario NDP government, which promised to think about con-
solidated bargaining on a sectoral basis, did not deliver anything for
workers on this front; nor has the British Columbia NDP government,
1
thus far. 0
These difficulties for workers in dramatically restructured labour
markets are compounded by the fact that the statutory collective bar-
gaining model is posited on the notion of a male full-time employee.
Today, this so-called standard employee, the supposed linchpin of the
PC 1003 model, is the exception more than the rule. Employers have
set out to discipline the labour market, to make it "more flexible".
Non-standard employment is proliferating. Non-standard employment
includes part-time, part-year, temporary help agency work and "own
account" self-employment. Of course, women always have been dis-
proportionately represented in non-standard jobs; this continues to be
the case. In the late 1980's, fully one-third of all jobs were non-
standard; over three-quarters of the jobs in the service sectors were
characterized in this way. It goes without saying that non-standard
jobs tend to be worse paid and provide fewer benefits and job security
98 For a commentary on the limited nature of protections, even with the newer
provisions in Ontario and British Columbia, see H.J. Glasbeek, "Agenda for
Canadian Labour Law Reform: A Little Less Liberal Reform, Much More Demo-
cratic Socialist Politics", (1993) 31 O.H.L.J. 233, and the argument made there
that what is offered by legislation and boards is often cut down by courts.
99 See above note 87.
100 The Ontario government did not even establish the Task Force it promised.
than do traditional jobs.10 1 Although there is much talk by employers

that they want to establish more flexible work practices to be more
productive, the evidence is that what they mean is that workers should
be more "flexible" (read: dependent, less secure, cheaper) to improve
productivity (read: profits).
Unions are fighting back. They are seeking legal changes to make
it easier to organize part-time workers and pressure is being put on
legislatures to require employers to give the same job benefit packages
to part-time workers as are available to full-time workers. Still, despite
some minor positive responses, it is manifest that the existence (and,
indeed, growth) of such a large, non-standard workforce has a depress-
ing affect on the wages and conditions of all other workers, whether
unionized or not.
The class nature of this situation should be manifest. Yet, it
seems not to be seen in that way. We argue that this is so because, to a
large extent, the "problem" has been redefined as if it presented a civil
rights' difficulty, rather than an outcome of irreconcilable class con-
flict.
One of the responses to the "problem" has been to legislate for
equity". This has two major components. One is pay equity to pro-
vide equal pay for work of equal value. It is aimed at ensuring that
women will get the same pay as men do for comparable jobs. The
other element is employment equity. It is aimed at giving better oppor-
tunities to workers who find it hard to get a foothold in the paid
workforce, that is, to people who systematically are denied access be-
cause of their race, gender, physical ability or aboriginal status. While
pay and employment equity use different techniques to tackle dis-
criminatory employment practices, they share some assumptions. Both
focus on rationalizing the practices within an individual workplace;
both allow for the use of the collective bargaining model, the upgraded
PC 1003 model, for implementation. That is, the crux of both kinds of
101 These phenomena are now well-documented; e.g., Economic Council of Canada,
Good Jobs, Bad Jobs: Employment in the Service Economy (Ottawa: Ministry of
Supply and Services, 1990); J. Fudge, Labour Law's Little Sister: The Employ-
ment Standards Act and the Feminization of Labour (Ottawa: CCRA, 1991);
D. Broad, "Feminization of Labour and Casualization of Labour = More
Degradation of Labour: Lions 3, Christians 0?", Learned Societies Conference,
Charlottetown, May 1992 (available from authors); H. Pold, "The Labour
Market: Mid-Year Report" Perspectives Labour and Income, Vol. 2, No. 3
(Autumn 1990), Stats-Can, Cat. 75-001E.
programmes is the employer-by-employer model. From this perspec-

tive, the equity programmes are based on the same private property
ideology which flaws the collective bargaining model. The splintered
approach is ill-suited to deal with the problem of systemic discrimina-
tion, since it is the very fragmentation of the labour market which
provides invidious forms of discrimination with the conditions needed
for them to take hold.
Inasmuch as pay equity is able to redress pay imbalances between
men and women workers, it is doing so at a time when men's wages
are declining. 10 2 To the extent that employment equity schemes afford
employment opportunities to groups normally disadvantaged in the
paid workforce, these schemes are limited to large firms and to public
sector employment. 103 Employment equity, even if maintained in Ont-
ario by the new Progressive Conservative government, will do nothing
for the vast majority of equity seekers: most are likely to have to look
for employment in small firms which fall outside the scope of the
legislation. The problem, then, is that the legislation ignores the over-
all deterioration in conditions of, and payment for, work.
In short, these programmes will not transcend the difficulties of
fragmentation built into the PC 1003 statutory collective bargaining
model. Significantly, pay and employment equity schemes of this na-
ture do not add to the potential for the use of political solidarity by
workers who have congruent interests. The emphasis of the
programmes is on the redress of differentials associated with ineluct-
able characteristics, rather than with conditions created by employers
who dominate the economy. That is, employees, not employers, are to
pay for the solutions to systemic discriminatory employment practices.
102 As yet, it is only in Ontario that the scheme applies to the private sector. Judy
Fudge, "Fragmentation and Feminization: The Challenge of Equity for Labour
Relations Policy" in J. Brodie, ed., Women and Public Policy in Canada (Tor-
onto: Harcourt Brace, 1995).
103 In Ontario, the legislation provides that the legislation does not apply to firms of
50 or fewer employees. And that, as we have seen, is the place where job growth
is taking place; Employment Equity Act, S.O. 1993, c. 35, s. 7 and Ontario
Regulation, 390/94, s. 11. The new Progressive Conservative government in
Ontario is expected to get rid of many aspects of the employment equity scheme.
8. SUMMARY
The employing classes and compliant governments are waging an
attack on workers' rights and conditions. Of course, employers and
governments do not characterize their conduct in this way. To the
contrary. They argue that world-wide competitive pressures require
that adjustments be made to well-established institutions without un-
dermining them, and that, in the long run, such modifications will
enure to the benefit of both the employing and working classes. This
argument enables them to maintain that Canada is a mature, liberal,
capitalist democracy, one in which trade unionism and welfarism are
seen as legitimate institutions and practices. Responsible employers
and politicians purport to hold fast to the consensus as they seek to
change its mode of operation.
Trade unionists are not convinced by this kind of argument. They
do not believe that competition is as intensified as employers claim it
to be. Inasmuch as the claim may be true in some industrial sectors,
they argue that governments should use their powers to protect
Canadians from the more egregious effects of unimpeded global
trading. 10 4 From this perspective, unions tend to characterize the ef-
forts to force workers to compete for wages as attempts to roll back
legislatively-won social welfare provisions and, more particularly, the
legally bestowed institutional collective bargaining rights they gained
with the passage of PC 1003 in 1944. As trade unions meet with fierce
resistance from both employers and governments when they seek to
defend, and when occasionally they dare to ask for improvements to,
their collective bargaining rights, they tend to define their politics by
this issue. The preservation (as some workers are losing it) and the
perfection (as there is a perceived need to bring some of the many
104 Their arguments are much more sophisticated than this, of course, but the bottom
line is that working class activists and their allies are arguing that economic
growth should not be primarily linked to unfettered trade. They would like to
return to more domestic planning and regulation of the economy. It is their view
that we should no longer rely on decentralized, unco-ordinated competition
amongst domestic producers to provide a general welfare which, somehow or
other, will lead to increased welfare for all Canadians. They see a need to have
industrial sectors consciously integrated, as co-operating, producing units, rather
than atomized, inefficiently competing ones. This would make for the best use of
the new technological capacities. For a review of these arguments, see H.J.
Glasbeek, "Agenda for Canadian Labour Reform", above, note 98 at 233-237,
and authorities cited there.
marginalized workers within it) of the institution of collective bargain-

ing has become the labour movement's major objective.
The practical politics of these worker efforts is not to question the
values and assumptions of the PC 1003 model, but rather to change its
coverage and reach. This confers a status on this collective bargaining
model which it ought not to have; it treats that regime as the optimal
product of the evolution of capital-labour regulation, rather than just a
valuable compromise which labour squeezed out of capital at a
propitious time. PC 1003 was a compromise; it did not abandon the
fundamental tenets of the pre-existing capital-labour entente which had
served to keep labour at a disadvantage. Many of the refinements to
this model have been about temporarily reducing the underlying
debilitating nature of those deep understandings which are now being
exploited against labour more fiercely than before.
It has been our position in this paper, therefore, that even if trade
unionists succeed better than they are presently doing in protecting
their collective bargaining rights from employer and government at-
tacks, they will still not be in a good position to resist the downward
slide cause by the employer-government push to force workers to com-
pete - with ever increasing intensity - with one another for scarce and
poor jobs. The legacy of PC 1003 is that there is still no questioning of
the private property/private contract model as the best mechanism with
which to create public welfare. Further, there is no challenge to the
view that the economic and political spheres are to be kept discrete,
enabling capital to exploit its economic power for political purposes
whereas labour cannot. Institutionally, trade unionism remains tragi-
cally fragmented. In addition, the PC 1003 model has been adminis-
tered in such a way as to support a segmented labour market, in which
regional differences and gender disparities can be exploited by capital
and some male workers. As workers fight from within this system,
they are in danger of further entrenching its tenets and exacerbating its
necessarily adverse effects.

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I Wartime Labour Relations Regulations, PC 1003, February 17, 1944.

improve the PC 1003 model, rather than change it radically. We are

2. STRUCTURED LIMITATIONS BUILT INTO PC 1003

(a) Bargaining Unit Designation Policies

fined the scope of effective unionization to core industries, such as the

(b) Women Workers

(c) Public Sector Employees

(d) Differential in Political Power Between Capital and Labour

The legislative model provided by PC 1003, and the subsequent

which stemmed from giving primacy to private property and private

3. THE POLITICS OF THE COMPROMISE

dustry and Humanity Revisited: Everything Old is New Again," (1991) 36

this context, collective organization and action by workers was easily

10 The story of the judiciary's explicit anti-collectivist behaviour is well-known:

The increased economic and political strength exercised by the

reform come on the agenda. This grudging approach to granting more

(b) First, Coercive Control

15 For discussions of how the Defence of Canada Regulations, PC 4750, September

time controls on labour mobility, and had created

(c) Second, Reformist Response to Militancy

23 A. Finkel, "Origins of the Welfare State," in L. Panitch (ed.), The Canadian

essential element in ensuring organized labour's continued commit-

28 .1.Fudge, "Voluntarism and Compulsion", above, note I at 261-278.

4. THE POSTWAR STRUGGLE: THE LIMITS OF

(a) Legalized Collective Bargaining

31 Fudge, "Voluntarism and Compulsion", above, note II at 303-305.

Despite trade union opposition, the Board decided that grievance

34 United Electrical, Radio and Machine Workers of America and PackardElectri-

freedoms won and to be defended by collective struggle". 37 Organiza-

37 L. Panitch & D. Swartz, "Towards Permanent Exceptionalism: Coercion and

(c) Union Security

40 Fudge, "Voluntarism and Compulsion", above, note 1 I at 330.

civilization within a framework of labour-employer constitutional law

(e) Reconfiguring the Labour Market: Bringing Gender Back In

46 Variants of this tactic to stop multi-employer bargaining have remained popular

threat of more unionization and would help lower aggregate labour

50 Marjorie Griffin Cohen, Women's Work (Toronto: University of Toronto Press,

women's, especially married women's, attachment to the labour force.

Moreover, the boards' preferred structure of employer-by-

5. TURNING LIMITED PC 1003 BARGAINING INTO AN

59 Fudge, "The Gendered Dimension of Labour Law", above, note 3.

by reliance on fortuitous market conditions. 6 2 The statutory collective

and 1968, workers' wages in the manufacturing sectors rose by 58%

to their old individualism-promoting friends, the courts, to get relief

citizens and accountable to all the electors, these governments' powers

workers is significant because, on the surface, this seemed to denote

6. THE EROSION OF PUBLIC SECTOR COLLECTIVE

workers' bargaining rights have been suspended for a certain period,

81 See note 76.

fidence they tended to under-estimate the extent to which the various

7. THE ABYSS: LABOUR MARKET CHANGES AND PC 1003