Labor and Employment Law Commons^™

Broader-Based And Sectoral Bargaining Proposals In Collective Bargaining Law Reform: A Historical Review, Sara Slinn

All Papers

Labour legislation regulating Canada’s private sector has incorporated forms of broader-based or sectoral certification and bargaining (BBB) in varying degrees for decades, particularly in British Columbia and Quebec. However, BBB had not been the subject of significant post-war labour law reform discussion until the 1990s. This decade saw a wave of interest in introducing BBB arise across several jurisdictions. Originating in Ontario in the late 1980s, it spread to British Columbia as a key part of labour law reform discussions in the early and late 1990s and became a minor issue in the federal labour law reform review process later …

Federal Enforcement Of Migrant Workers’ Labour Rights In Canada: A Research Report, Eric M Tucker, Sarah Marsden, Leah F. Vosko

Articles & Book Chapters

Although Canada’s migrant labour program is seen by some as a model of best practices, rights shortfalls and exploitation of workers are well documented. Through migration policy, federal authorities determine who can hire migrant workers, and the conditions under which they are employed, through the provision of work permits. Despite its authority over work permits, the federal government has historically had little to do with the regulation of working conditions. In 2015, the federal government introduced a new regulatory enforcement system - unique internationally for its attempt to enforce migrants’ workplace rights through federal migration policy - under which employers …

Freedom To Strike? What Freedom To Strike? Back-To-Work Legislation And The Freedom To Strike In Historical And Legal Perspective, Eric Tucker

Articles & Book Chapters

Defenders of labour rights rightly criticize the enactment of back-to-work (BTW) legislation ending otherwise lawful strikes as egregious interference with the freedom to strike, a freedom that in 2015 the Supreme Court of Canada (SCC) held is constitutionally protected. Yet, often overlooked in discussions of the freedom to strike and the propensity of neoliberal governments to limit that freedom through exceptional measures is the baseline of restrictions built into the DNA of Canada’s version of the Wagner Act Model (WAM) of collective bargaining. The first goal of this essay, therefore, is to locate BTW measures in the longer history and …

Wage Boards For The 21st Century: Revisiting Sectoral Standard-Setting Mechanisms For The Workplace, Sara Slinn

Conference Papers

As existing labour relations and minimum standards regulatory systems have continued to struggle to ensure acceptable worker voice and workplace standards, attention has increasingly turned to whether broader-based or sectoral approaches can offer solutions. Broader-based or sectoral approaches can be understood as falling into three categories of models: multi-employer, juridical extension, and sectoral standard-setting models. A key difference among these is that the first two categories involve not only collective representation of workers but also collective bargaining; the third model – sectoral standard-setting – involves a form of collective representation, but does not involve collective bargaining, which is characterized by …

Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Rebecca Casey, Mark Thomas, John Grundy, Andrea M. Noack

Articles & Book Chapters

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

Enforcing Employment Standards For Migrant Agricultural Workers In Ontario, Canada: Exposing Underexplored Layers Of Vulnerability, Leah F. Vosko, Eric Tucker, Rebecca Casey

Articles & Book Chapters

Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (ESA), which establishes basic minimum entitlements in areas such as wages, working time, and vacations and leaves. Drawing on an analysis of the Ontario Ministry of Labour’s(MOL’s) Employment Standards Information System (ESIS), a previously untapped administrative data source containing information on all of Ontario’s …

Regulating Strikes In Essential Services - Canada, Eric Tucker

Articles & Book Chapters

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

The Employment Standards Enforcement Gap And The Overtime Pay Exemption In Ontario, Mark P. Thomas, Leah F. Vosko, Eric Tucker, Mercedes Steedman, Andrea M. Noack, John Grundy, Mary Gellatly, Lisa Leinveer

Articles & Book Chapters

Employment Standards (es) legislation sets minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. es legislation is designed to provide minimum workplace protections, particularly for those with little bargaining power in the labour market. In practice, however, es legislation includes ways in which legislated standards may be avoided, including through exemptions that exclude specified employee groups, fully or partially, from legislative coverage. With a focus on the Ontario Employment Standards Act, this article develops a case study of exemptions to the overtime pay provision of the act and regulations …

Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Rebecca Casey, Mark P. Thomas, John Grundy, Andrea M. Noack

Articles & Book Chapters

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

Viewing The International Labour Organization’S Social Justice Praxis Through A Third World Approaches To International Law Lens: Some Preliminary Insights, Obiora Chinedu Okafor, Titilayo Adebola, Basema Al-Alami

Articles & Book Chapters

The overarching objective of this paper is to shine a Third World

Approaches to International Law (TWAIL) torchlight on the ILO’s social

justice discourse and praxis to find out what can be seen, or seen in a new

light, or seen in a different way, when the TWAIL approach is adopted,

and to comment on the significance of our findings, if any. To this end,

the paper pursues two specific and intertwined goals, namely: (i) to analytically

tease out the similarities and differences between TWAIL’s avowedly

(global) social justice discourse and praxis and its ILO counterpart; and (ii)

to, in …

Bc Teachers’ Federation V. British Columbia: The Supreme Court Takes A School Holiday, Eric Tucker

Articles & Book Chapters

Constitutional labour rights in Canada now protect workers’ freedom to organize and bargain collectively and to strike. These associational freedoms are especially important for public sector workers, the most frequent targets of legislation limiting their freedoms. However, the Supreme Court of Canada judgments recognizing these rights and freedoms have also introduced important ambiguities about their foundation, scope and level of protection. This brief comment locates these ambiguities in the context of Canada’s political economy and industrial relations regime, which are beset by contradiction and conflict. It then explores the origins and development of the jurisprudential ambiguities in constitutional labour rights …

Labour Law In Post-Democratic And Post-Liberal Societies: A Case Of Cognitive Dissonance, Harry Arthurs

Conference Papers

Recently I contributed to a volume on the philosophical foundations of labour law. Most contributors located our subject within the discourse of liberal democracy, using terms such as “distributive justice”, “non-exploitation”, “dignity”, “citizenship”, and “social inclusion”. If you have a good memory, you’ll recall that such terminology once commanded respect amongst intellectuals and policy makers, that they were endorsed across the political spectrum, that they enjoyed widespread, if not deep, public support, that they even inspired practical public policies. If you have a good memory you’ll remember all that.

Compensating Work-Related Disability: Theory, Politics And History Of The Commodification-Decommodification Dialectic, Eric Tucker

Articles & Book Chapters

In 2015, the last year for which we have complete Canadian data, workers' compensation boards recognized that 852 Canadian workers died from work-related injuries and diseases and 232,629 workers experienced disabling injuries requiring them to take time off work. About 13 percent of those injured will have permanent disabilities of varying severity. These figures significantly underestimate the true burden of work-related disability for at least three reasons. First, the percentage of the paid Canadian workforce covered by workers' compensation has been shrinking. In 2008, it was estimated to stand at about 80 percent, although coverage bounced back to about 85 …

Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay

Articles & Book Chapters

Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal sanctions …

Book Review - Larry Savage And Charles Smith, Unions In Court: Organized Labour And The Charter Of Rights And Freedoms, Eric Tucker

Articles & Book Chapters

The constitutionalization of labour rights in Canada is one of the most remarkable and, perhaps, unexpected developments in the 36 year history of the Charter of Rights and Freedoms. Few observers in 1982 would have predicted that the Charter rights of freedom of expression and association would provide constitutional protection for picket-line activity, collective bargaining, and strikes. Indeed, for some critical observers, the advent of the Charter was viewed as an ominous development, advancing the neo-liberal project of degrading and bypassing democratic institutions to insure the maintenance of conditions favourable to capital accumulation and the power of economic elites. …

Dismissal Due To Business Reasons In Canada, Eric Tucker, Christopher Grisdale

Articles & Book Chapters

Canada is a liberal market economy and as such the law places few restrictions on the employer’s freedom to dismiss an employee. In particular, the law places no restriction on the freedom of employers to dismiss employees for business reasons. However, dismissed employees are entitled to certain rights, the most important of which is notice of termination or pay in lieu of notice.

Wage And Inequalities In Canada (2018), Eric Tucker, Isaac Handley

Articles & Book Chapters

Canada is a federal state and, pursuant to its constitution, labour and employment law is principally a matter of provincial jurisdiction. The federal government’s powers in this field are limited to the federal public service and federally regulated businesses, which is estimated to cover about 10% of the labour force. Therefore, there are no nationally applicable laws governing the minimum wage or employment discrimination. In the discussion that follows, we refer to the common features that can be found in all or most Canadian jurisdictions, but draw principally upon the Province of Ontario, Canada’s most populous province, for specific examples.

Using Tickets In Employment Standards Inspections: Deterrence As Effective Enforcement In Ontario, Canada?, Rebecca Casey, Eric Tucker, Leah F. Vosko, Andrea M. Noack

Articles & Book Chapters

It is widely agreed that there is a crisis in labour/employment standards enforcement. A key issue is the role of deterrence measures that penalise violations. Employment standards enforcement in Ontario, like in most jurisdictions, is based mainly on a compliance framework promoting voluntary resolution of complaints and, if that fails, ordering restitution. Deterrence measures that penalise violations are rarely invoked. However, the Ontario government has recently increased the role of proactive inspections and tickets, a low-level deterrence measure which imposes fines of $295 plus victim surcharges. In examining the effectiveness of the use of tickets in inspections, we begin by …

Migrant Workers And Fissured Workforces: Cs Wind And The Dilemmas Of Organizing Intra-Company Transfers In Canada, Eric M Tucker

Articles & Book Chapters

Canadian temporary foreign worker programs have been proliferating in recent years. While much attention has deservedly focused on programs that target so-called low-skilled workers, such as seasonal agricultural workers and live-in caregivers, other programs have been expanding, and have recently been reorganized into the International Mobility Program (IMP). Streams within the IMP are quite diverse and there are few legal limits on their growth. One of these, intra-company transfers (ICTs), is not new, but it now extends beyond professional and managerial workers to more permeable and expansive categories. As a result, unions increasingly face the prospect of organizing workplaces where …

Closing The Employment Standards Enforcement Gap, An Agenda For Change, Leah F. Vosko, John Grundy, Eric Tucker, Andrea M. Noack, Mary Gellatly, Rebecca Casey, Mark P. Thomas, Guliz Akkaymak, Parvinder Hira-Friesen

Commissioned Reports, Studies and Public Policy Documents

Precarious employment is increasing in Ontario. A growing share of Ontario’s private sector employees earns low wages while a shrinking portion belongs to unions. These trends are fueled by changes in the structure of Ontario’s labour force. In many industries, including accommodation and food services, administrative services, and cleaning, workplaces are being transformed through greater use of contracting out, franchising, and extended supply chains. These ways of structuring work contribute to driving working conditions downward.

Labour Effects Of Corporate Groups In Canada, Eric Tucker, Abdalla Barqawi

Articles & Book Chapters

In Canada, the norms of capitalist legality are deeply entrenched. As a result, businesses are generally free to structure their affairs in any way that serves their interests. One of the most foundational norms is that each corporation has a distinct legal personality. Not only does this protect shareholders and directors from personal responsibility for the corporation’s liabilities, but it also means that one corporation is not normally liable for the obligations of another corporation even though both corporations are owned and controlled by the same individuals.

Fixed-Term Contracts And Principle Of Equal Treatment In Canada, Eric M Tucker, Alec Stromdahl

Articles & Book Chapters

Canada is best characterized as a liberal market economy which lightly regulates employment relations and, in particular, the duration of employment contracts.1 As such, many of the kinds of protections that might be found in other countries included in this dossier are not present in Canada. There are, however, a few older statutory provisions that limit the length of fixed-term contracts and impose formalities for their creation because of a concern about the creation of disguised forms of unfree labour. There is also a small body of common law that reflects a preference for contracts of indefinite hiring over fixed …

On Writing Labour Law History: A Reconnaissance, Eric M Tucker

Articles & Book Chapters

Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but …

Improving Employment Standards And Their Enforcement In Ontario: A Research Brief Addressing Options Identified In The Interim Report Of The Changing Workplaces Review, Leah F. Vosko, John Grundy, Eric Tucker, Andrea M. Noack, Alan Hall, Mark P. Thomas, Rebecca Casey, Kiran Mirchandani, Guliz Akkaymak

Commissioned Reports, Studies and Public Policy Documents

The quality of employment available to Ontarians is a growing concern among legislators, policymakers, and the general public alike. There is widespread recognition that precarious employment and the challenges posed by the associated realignment of risks, costs and power relations between employees and employers require improvements to employees’ legislative protection. Ontario’s Changing Workplaces Review (CWR) affords us an opportunity to take stock of important changes taking place the province’s labour market. As the Terms of Reference introduced at the outset of the CWR note, “far too many workers are experiencing greater precariousness” in employment in Ontario today than in the …

Maximizing Opportunity, Minimizing Risk: Aligning Law, Policy And Practice To Strengthen Work-Integrated Learning In Ontario, Joseph F. Turcotte, Leslie Nichols, Lisa Philipps

All Papers

A broad consensus is emerging in Ontario and at the federal level in favour of expanding postsecondary students’ access to experiential or “work-integrated learning” (WIL) opportunities. One of the challenges in implementing this vision is navigating the complex legal status of students as they leave campus and enter workplaces in a wide range of industries and roles. This study aims to support these efforts by mapping the current legal landscape for WIL to identify both risks and opportunities for students, post-secondary institutions (PSIs) and placement hosts alike (referred to collectively in this study as “WIL participants”). It makes recommendations to …

A Law Of Just Transitions?: Putting Labor Law To Work On Climate Change, David J. Doorey

Osgoode Legal Studies Research Paper Series

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept …

Working Time And Flexibility In Canada, Eric Tucker, Leah F. Vosko

Articles & Book Chapters

Canada is a federal state and, under its constitution, legislative jurisdiction over labour and employment is vested primarily in its provinces and territories. As a result, there is no generally applicable national regime regulating hours of work, but rather a patchwork of laws with limited reach. It is not possible to cover all these laws in a brief overview and so we have chosen to focus on the laws of Ontario, Canada’s most populous province. However, it is also fair to say that while provincial laws vary, the law of Ontario reflects the general pattern of hours of work laws …

Employment Standards Enforcement: A Scan Of Employment Standards Complaints And Workplace Inspections And Their Resolution Under The Employment Standards Act, 2000, Leah F. Vosko, Andrea M. Noack, Eric Tucker

All Papers

No abstract provided.

Outsourcing And Supply Chains In Canada, Eric Tucker, Leah F. Vosko, John Grundy, Alec Stromdahl

Articles & Book Chapters

While data on the extent of outsourcing by Canadian businesses is scant, there is general agreement that over the last several decades the phenomenon has increased and taken a variety of forms including the use of global supply-chains (offshoring) and domestic subcontracting (outsourcing).175 In this way, large businesses have been able to shed responsibility for the employees who actually perform the work. David Weil has aptly characterized this phenomenon as “fissuring”, which can take a variety of forms including sub-contracting, franchising, and other arrangements.176 A related phenomenon that will be addressed here is the use of temporary employment agencies through …

Equality, Non-Discrimination And Work-Life Balance In Canada, Eric Tucker, Alec Stromdahl

Articles & Book Chapters

The principle that everyone has a right to equal treatment was first entrenched in Canadian law in the aftermath of the Second World War when legislation began to be enacted prohibiting discrimination on the basis of sex, race and religion. Since that time, the grounds of prohibited discrimination have steadily increased. These grounds will be discussed in greater detail in the answer to question 1. Because Canada is a federal state and courts have held that legislative authority over human rights is primarily a matter of provincial jurisdiction, there is no uniform law of Canada. Nevertheless, the provisions of statutory …