In Janus v. AFSCME Council 31, 138 p. Ct. 2448 (2018), the U.S. Supreme Court recently ruled that legislation requiring public sector employees in entities represented by public sector unions to pay «Fair Share Fees» (sometimes referred to as «agency fees») is contrary to the First Constitutional Amendment by requiring individuals to: subsidize the speech of other private parties. Justice Samuel Alito wrote for the majority: «Neither agency fees nor any other payment to the union may be deducted from the wages of a non-member, nor may any other attempt be made to recover such payment, unless the employee agrees with the payment.» The direct impact of Janus is that public sector employees cannot be required to pay for union activities without their clear and confirmed consent. If the agency shop is illegal, as is the case in the labor law of U.S. public sector unions, the union and the employer can agree on a «fair sharing clause.»   The provision requires non-unionized workers to pay a «fair participation fee» to cover the union`s collective bargaining costs. The «fair share» is similar to that of the agency`s shop, but it is usually more restrictive, which can be charged to the non-member. [Clarification needed]   In Canada, the agency fee is generally referred to as the marginal formula.  In the United States, the mandatory payment of agency fees for non-unionized employees in the public sector was declared unconstitutional to Janus v. AFSCME in June 2018.
The international labour organization alliances are not interested in the legality of agency fee provisions, so the issue is left to individual nations.  The legal status of agency shop contracts varies considerably from country to country, ranging from prohibitions in the agreement to non-mention to comprehensive regulation of the agreement. Although the effect of the Janus decision has been felt over the years, public employers now have to deal with the immediate effects of Janus and the resulting legislation. These practical considerations should serve as a general guide for public employers to minimize disruption in the workplace during the transition to janus. Since the agency fee provisions are only part of an overall collective agreement, public employers must carefully check these agreements for each contractual language that requires agency deductions (or service fees), given that Janus now makes this language illegal. This issue becomes even more complex if the current collective agreement does not contain a salvatorial clause. In addition, unions can try to negotiate the «effects» of Janus, depending on the jurisdiction. Labor laws in many public sector states require «impact bargaining,» which focuses on negotiations about the impact of management decisions on union employees. .