Cross-border labour fight reaches Supreme Court. Mandatory union membership put to test

By Janice Tibbetts, The Ottawa Citizen, Tuesday 21 March 2000

Andre Gareau describes himself as pro-choice, not anti-union.

The Ottawa construction worker, who has fought for years against becoming a union member, will watch from the back benches of the Supreme Court of Canada today as his lawyer argues that the constitutional guarantee of freedom of association should include the right not to associate.

"Some people need a union and others can take care of themselves," said Mr. Gareau, 56, owner of a concrete cutting company. "I respect people who want to join a union, but I don't need a father figure to protect my interests."

Although there have been challenges in lower courts, today is the first time the Supreme Court of Canada will examine compulsory union membership.

Mr. Gareau and his company, Advance Cutting and Coring Ltd., are contesting the Quebec government's 29-year-old labour law that requires construction workers to belong to one of five state-sanctioned unions in order to work in the construction industry in the province.

All construction workers must hold union-administered "cartes de competence" to be hired, but only a certain number of the cards are given out, depending on the number of workers the government deems necessary to meet market demand.

The requirement has sparked a political battle between Ontario and Quebec, particularly in the Ottawa-Hull area, where Ontario workers want to work across the river in Quebec. Premier Mike Harris even threatened last year to retaliate against Quebec unless it opens up the industry.

Mr. Gareau, who continues to work in Quebec without a card, says he has amassed more than $30,000 in fines in the past 15 years and says he'd rather go to jail than pay. There's already a warrant out for the arrest of one his workers in Quebec for refusing to pay a $350 penalty. And another construction worker's defiance of the law resulted in a 24-day jail sentence for unpaid fines.

"I still work on the Quebec side and I'll never stop," said Mr. Gareau. "I'm Canadian and I'm going to work where people want me. They'll have to put me in jail before I pay."

His case reaches the Supreme Court after two losses in the Quebec courts.

Compulsory union membership is "invasive, intrusive and unnecessary," Mr. Gareau's lawyer, Julius Grey, contends in a written court submission.

"The objection to union membership can be anchored in profound moral, religious, or political convictions and it is implicit in Canadian law that such convictions are to be respected."

But the Quebec government counters that unions and the carte de competence are needed to keep tabs on an industry in which vulnerable labourers need the collective power to negotiate with powerful bosses.

"The legislation in question has, among other things, the objective of protecting a vulnerable group," says a court submission. "In sum, involuntary association, if there is one, is not excessive in the pursuit of the common goal of collective bargaining and for preserving union democracy."

The case has pitted labour unions against right-to-work groups.

A combined legal brief from three intervening organizations, including Quebec's powerful Confederation des Syndicats Nationaux, warns the Supreme Court against embracing the right not to associate. The groups contend it would have vast consequences, threatening everything from roughly 40 professional organizations to university student associations.

If the judges rule in Mr. Gareau's favour it will send Canadian courts "on an endless spiral of judicial challenges," involving a "multitude of Canadian associations," says the court submission.

On the other side, the Canadian Coalition of Open Shop Contracting will hold a press conference before today's hearing to assert that construction workers across the country should be free to work in Quebec, just as they are in other provinces.

"Anyone who cannot, or does not want to, become a member of one of these unions is shut out entirely," argues the coalition.

Mr. Gareau has Quebec employees who can't work in their home province because they work for an Ontario company. He says they're in a catch-22: they can't get a carte de competence unless they've collected 1,000 work hours in Quebec, but they can't accumulate the time unless they have the card.