Unions will challenge Bill C-377 first in the election, then in the courts

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It took an unusual procedure to pass the anti-union bill, C-377. 

Conservative Senators voted against their own speaker in order to force a vote on the bill before the Senate began its summer recess. Early last week, as its last bit of business before the break, the Senate voted 35-22 to pass the bill, but unions say the fight is far from over.

In fact, the bill's passage will only add more fuel to the fire, as the labour movement continues to ramp up its Stop Harper campaigns for the upcoming federal election.

"The Canadian Labour Congress [CLC] and the labour movement are engaged in getting our issues front and centre for the coming general election, and that's really the priority for every union that I'm aware of," explained CLC Director of Social and Economic Policy, Chris Roberts.

"I think the sentiment in the labour movement is that the most immediate way to get rid of Bill C-377 and similar sorts of anti-union legislation coming out of this government is to get rid of the government. So that's the priority: fighting the bill and fighting the government have kind of merged into one," he added.

C-377 amends the Income Tax Act to require that all labour organizations provide financial information to the Canadian Revenue Agency for public disclosure. Unions, associations, and even district labour councils, will have to give detailed reports of their assets and liabilities as well as recording all expenses of $5,000 or more, including who received the payment and why. The salaries of union employees making $100,000 or more will also become public information. 

The Canadian Revenue Agency has estimated that implementing the new law will cost $2.6 million for the first two years, and $1.5 million every subsequent year, and that money will have to come out of the CRA's existing budget. 

Conservative backbencher Russ Hiebert, who introduced C-377 as a private member's bill, has said the law is an instrument of transparency. In fact, under provincial labour laws, union members already have the right to request financial records from their union, and most unions make this information available to their members at their annual Conventions.

Though the constitutionality of the bill has already been questioned by numerous groups, including the Canadian Bar Association, the federal Privacy Commissioner, and seven provincial governments, Roberts says that before turning to the courts, labour unions will use this election as its first line of defense against the Bill.

"The focus is very much on the larger referendum on this government, which will be the election, as opposed to chasing this bill into the courts," he said. 

The bill will come into force for the 2016-2017 fiscal year. Labour organizations will have six months after the close of that year to file their financial reports -- the first time they'll need to file reports will be June 2017.

In a best-case scenario, Robert explained, the Conservatives would lose the federal election in October, and their successors would repeal the law before it actually takes effect -- something that both the NDP and the Liberals have vowed to do.

If the Conservatives are re-elected, or if a repeal bill is not introduced, then unions will begin a legal battle to challenge the bill's constitutionality.

More onerous than U.S. laws

International unions like the United Steelworkers, LiUNA, and SEIU already have to contend with financial disclosure laws in the United States.

However, United Steelworkers President Leo Gerard thinks that the requirements of C-377 are even more burdensome that the American law it is reportedly based on.

"The overall thrust of the Canadian version of this is much much more draconian and irresponsible than even the LM2s and the LMs that are required in the U.S.," said Gerard. "It's really not about union's financial disclosure. They are using financial disclosure to undermine the ability of the labour movement to function, that's what they are doing."

Unlike the U.S. financial disclosure laws, Canada's C-377 requires the same reporting standards for all labour organizations, regardless of their size. Gerard said that his union's accountants have estimated that it takes the equivalent of roughly three or four people working full-time to file their financial disclosure reports to the U.S. government.

That's time and money that smaller locals just cannot afford. 

"When it goes down to the level of local unions? In 90 per cent of the cases those are volunteers that volunteer to keep the records and do the finances, they are not damn accountants," said Gerard. "Take for example my home local in Sudbury: it raises money through a raffle, and it takes that money and gives it to the food bank. And very often they'll raise $20,000-25,000. Are they going to have to start keeping records of who bought the tickets, where did it go, how much time did you spend on this, did anybody get paid for doing this, who did you give the money to, why did you give the money to them?"

Like many of the bill's opponents, Gerard believes that the real intention behind the bill is to weaken the labour movement by overburdening union resources, and providing detailed information to anti-unionists.

"It's designed to give anti-union forces, the union busters, the ability to pick selective pieces of information and use them in a way that would be negative to a union in collective bargaining and in organizing, or even in political action," said Gerard, who said that U.S. financial disclosure laws have had a negative effect on his union's ability to organize new workplaces, especially in right-to-work states. 

In the United States, labour relations fall under federal jurisdiction, whereas in Canada, it is a provincial matter. That is why Bill C-377 is filed as an amendment to the Income Tax Act.

According to Associate Professor of Labour and Employment Law at York University David Doorey's analysis of the bill, this classification error could leave C-377 open to a constitutional challenge. 

U.S. financial disclosure laws also require employers to disclose when they have spent money on union-busting, such as hiring an anti-union consultant to squash an organizing drive.

There is no equivalent under Canadian law, but C-377 does force unions to disclose the amount of time and resources that union staff have spent on "political activities, lobbying activities and other non-labour relations activities."

Doorey points out that not only is this provision onerous, one-sided, and ill-defined, it may reach outside the purview of what is constitutionally acceptable under federal tax law. No other type of organization is required to make these kinds of disclosures. 

Gerard agrees.

"I'm fairly convinced that first of all, we've got to defeat the Harper regime in the upcoming election, and we've got to get this case to the Supreme Court," he said. "I think this has got so many constitutional conflicts that it won't pass the Supreme Court smell test."


Ella Bedard is rabble.ca's labour intern and an associate editor at GUTS Canadian Feminist Magazine. She has written about labour issues for Dominion.ca and the Halifax Media Co-op and is the co-producer of the radio documentary The Amelie: Canadian Refugee Policy and the Story of the 1987 Boat People.


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