Rand Formula - Freedom of Association Issue

Freedom of Association Issue

The Rand formula applies to all employees whether they are union members or not. The Supreme Court of Canada has found that the freedom of association is not undermined by the Rand formula. In the 1991 Lavigne decision, the Justices of the Court held in various concurring reasons that if the Rand formula did violate section 2(d), it could be justified under section 1 of the Canadian Charter of Rights and Freedoms.

I would suggest that a worker like Lavigne would have no chance of succeeding if his objection to his association with the Union was the extent that it addresses itself to the matters, the terms and conditions of employment for members of his bargaining unit, with respect to which he is "naturally" associated with his fellow employees. Few would think he should not be required to pay for the services the Union renders him in this context. Significantly, he does not object to these matters. With respect to these, the Union is simply viewed as a reasonable vehicle by which the necessary interconnectedness of Lavigne and his fellow workers is expressed.
When, however, the Union purports to express itself in respect to matters reflecting aspects of Lavigne's identity and membership in the community that go beyond his bargaining unit and its immediate concerns, his claim to the protection of the Charter cannot as easily be dismissed. In regard to these broader matters, his claim is not to absolute isolation but to be free to make his own choices, unfettered by the opinion of those he works with, as to what associations, if any, he will be associated with outside the workplace.