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Full-Text Articles in Labor and Employment Law

Regulating Strikes In Essential Services - Canada, Eric Tucker Dec 2018

Regulating Strikes In Essential Services - Canada, Eric Tucker

Eric M. Tucker

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.


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 Dec 2018

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

Eric M. Tucker

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.


Outsourcing And Supply Chains In Canada, Eric Tucker, Leah F. Vosko, John Grundy, Alec Stromdahl Jun 2017

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

Eric M. Tucker

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 …


Book Review: Assault On The Worker: Occupational Health And Safety In Canada By Charles E. Reasons, Lois L. Ross And Craig Paterson, Eric M Tucker Jun 2017

Book Review: Assault On The Worker: Occupational Health And Safety In Canada By Charles E. Reasons, Lois L. Ross And Craig Paterson, Eric M Tucker

Eric M. Tucker

No abstract provided.


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 Jun 2017

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

Eric M. Tucker

No abstract provided.


Fixed-Term Contracts And Principle Of Equal Treatment In Canada, Eric M Tucker, Alec Stromdahl Jun 2017

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

Eric M. Tucker

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 …


Migrant Workers And Fissured Workforces: Cs Wind And The Dilemmas Of Organizing Intra-Company Transfers In Canada, Eric M Tucker Jun 2017

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

Eric M. Tucker

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 …


Employment-Related Geographic Mobility In Canada And Collective Bargaining: A Report Prepared For The On The Move Partnership Research Team, Eric Tucker, Brendan Breckman Jowett Jul 2016

Employment-Related Geographic Mobility In Canada And Collective Bargaining: A Report Prepared For The On The Move Partnership Research Team, Eric Tucker, Brendan Breckman Jowett

Eric M. Tucker

Report prepared for: On the Move, Policy Component, July, 2014.


Layers Of Vulnerability In Occupational Health And Safety For Migrant Workers: Case Studies From Canada And The Uk, Eric Tucker, Malcolm Sargeant Feb 2015

Layers Of Vulnerability In Occupational Health And Safety For Migrant Workers: Case Studies From Canada And The Uk, Eric Tucker, Malcolm Sargeant

Eric M. Tucker

No abstract provided.


"Great Expectations" Defeated?: The Trajectory Of Collective Bargaining Regimes In Canada And The U.S. Post-Nafta, Eric Tucker Feb 2015

"Great Expectations" Defeated?: The Trajectory Of Collective Bargaining Regimes In Canada And The U.S. Post-Nafta, Eric Tucker

Eric M. Tucker

From the beginning of the free-trade era one contentious area has been the impact of trade liberalization on labor law. Opponents of NAFTA (and some supporters) predicted a regulatory race to the bottom (RTB) would ensue leading to increasingly deregulated labor markets. The result would be weaker collective bargaining laws, lower minimum standards, and a decline in the social wage. In recent years a number of scholars have examined the question in light of more than fifteen years experience under CUFTA and ten under NAFTA and there seems to be a growing consensus that, contrary to those 'great expectations', labor …


The Faces Of Coercion: The Legal Regulation Of Labor Conflict In Ontario, 1880-1889, Eric Tucker Feb 2015

The Faces Of Coercion: The Legal Regulation Of Labor Conflict In Ontario, 1880-1889, Eric Tucker

Eric M. Tucker

This article is part of a larger study of Canadian labor law before the advent of statutory collective bargaining, which questions the traditional periodization and the meanings of the categories. It is often an un-articulated premise that the exercise by employers of their superior economic power, as imparted and structured through the law of property and contract, is not coercion. Rather, the analysis is restricted to direct state coercion, exercised through the criminal law, the police, and the injunction. This framework produces a partial view of the role of law and interferes with an analysis of the strategic choices made …


Industry And Humanity Revisited: Everything Old Is New Again: Review Of Paul C. Weiler, Governing The Workplace, Eric Tucker Feb 2015

Industry And Humanity Revisited: Everything Old Is New Again: Review Of Paul C. Weiler, Governing The Workplace, Eric Tucker

Eric M. Tucker

The decline of American unionism is now a well-documented phenomenon. Its causes and consequences, however, remain the subject of intense debate. Regardless of one’s view of this development, it clearly poses a challenge to the traditional techniques for the legal regulation of the employment relationship, and especially for state-sponsored collective bargaining which has been the centerpiece of American labour policy since the enactment of the Wagner Act in 1935. It is this crisis in American labour and employment law which Paul C. Weiler seeks to address in his new book, “Governing the Workplace: The Future of Labor and Employment Law”. …


"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker Feb 2015

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Eric M. Tucker

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …


Remapping Worker Citizenship In Contemporary Occupational Health And Safety Regimes, Eric Tucker Feb 2015

Remapping Worker Citizenship In Contemporary Occupational Health And Safety Regimes, Eric Tucker

Eric M. Tucker

The article draws on the rapidly growing field of citizenship studies to map and explore the dynamics of contemporary occupational health and safety (OHS) regulation. Using two key dimensions of OHS regulation (protection and participation), the author constructs four ideal types of worker citizenship (market, public, private industrial, and public industrial citizens). Historically, workers have been written into OHS regulatory regimes in each of these ways. Most recently lawmakers have created a new species of OHS regimes, best described as mandated partial self-regulation. Its distinguishing characteristic is its flexibility, such that worker citizenship can take on any of the forms …


Who’S Running The Road?: Street Railway Strikes And The Problem Of Constructing A Liberal Capitalist Order In Canada, 1886-1914, Eric Tucker Feb 2015

Who’S Running The Road?: Street Railway Strikes And The Problem Of Constructing A Liberal Capitalist Order In Canada, 1886-1914, Eric Tucker

Eric M. Tucker

Street railway strikes in the late nineteenth and early twentieth centuries were frequently the occasion for large-scale collective violence in North American cities and challenged the capacity of local authorities to maintain civic order. However, this was only the most visible manifestation of the challenge that street railway workers’ collective action posed to the order of liberal capitalism, an order constructed on several intersecting dimensions. Using the example of Canadian street railway workers from 1886 to 1914, a period of rapid urbanization and industrialization, this article explores the ways the collective action by workers and their community sympathizers challenged the …


Forging Responsible Unions: Metal Workers And The Rise Of The Labour Injunction In Canada, Eric Tucker, Judy Fudge Feb 2015

Forging Responsible Unions: Metal Workers And The Rise Of The Labour Injunction In Canada, Eric Tucker, Judy Fudge

Eric M. Tucker

At the turn of the century, the legislative, administrative, and judicial branches of the Canadian state responded to the labour conflicts associated with the second industrial revolution by simultaneously expanding both their coercive and their facilitative roles. This paper examines one aspect of this development, the rise of the labour injunction, through a study of a series of strikes conducted chiefly by metal workers in south central Ontario between 1900 and 1914. In addition to retrieving the largely forgotten genealogy of a body of law that continues to play an important role in regulating and containing trade union activity, the …


A Response, Fay Faraday, Eric Tucker Feb 2015

A Response, Fay Faraday, Eric Tucker

Eric M. Tucker

Faraday and Tucker respond to criticism about their work Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012).


The Westray Mine Disaster And Its Aftermath: The Politics Of Causation, Eric Tucker Feb 2015

The Westray Mine Disaster And Its Aftermath: The Politics Of Causation, Eric Tucker

Eric M. Tucker

Causation analysis is densely political in at least three ways. First, because causation is crucial to our system of attributing moral, legal, and political responsibility, causation arguments are advanced for purely instrumental purposes. They do political work. Second, because any particular occurrence is the outcome of an almost infinite number of antecedent events, “but for” causation analysis produces trivial results. A judgment about causal significance is required and will depend, in part, on the goals of the analysis. The choice of goals is political, but unstated goals and hidden assumptions often exclude consideration of some possible causes as significant. Theses …


Farm Worker Exceptionalism: Past, Present, And The Post-Fraser Future, Eric Tucker Feb 2015

Farm Worker Exceptionalism: Past, Present, And The Post-Fraser Future, Eric Tucker

Eric M. Tucker

No abstract provided.


"That Indefinite Area Of Toleration": Criminal Conspiracy And Trade Unions In Ontario, 1837-77, Eric Tucker Feb 2015

"That Indefinite Area Of Toleration": Criminal Conspiracy And Trade Unions In Ontario, 1837-77, Eric Tucker

Eric M. Tucker

During the first three quarters of the nineteenth century, the question of whether trade unions in Ontario were criminal conspiracies under common law was never clearly determined. By examining the development and interaction of the legal and social zones of toleration we can illuminate how law was shaped by and shaped early struggles between workers and employers. The statutory reforms of 1872 clearly defined a narrow zone of legal toleration in which trade unions were accepted as labour market organizations while the means they could to pursue their objectives were restricted. The contours of industrial legality which began to emerge …


Worker Health And Safety Struggles: Democratic Possibilities And Constraints, Eric Tucker Feb 2015

Worker Health And Safety Struggles: Democratic Possibilities And Constraints, Eric Tucker

Eric M. Tucker

The central point of this article, written in 1995, was that health and safety struggles can be at the vanguard of challenges to a legal social order that tolerates poor labour standards and high levels of worker exploitation. Workers who fear their work is making them sick or subjecting them to high levels of injury and disablement know first-hand that the values of democracy, autonomy, equality and community are denied and not realized by current arrangements. By drawing on that experience and explicitly linking health and safety demands to an alternative vision of social justice, one in which workers enjoy …


Labor's Many Constitutions (And Capital's Too), Eric Tucker Feb 2015

Labor's Many Constitutions (And Capital's Too), Eric Tucker

Eric M. Tucker

No abstract provided.


Death By Consensus: The Westray Story, Eric Tucker, Harry Glasbeek Feb 2015

Death By Consensus: The Westray Story, Eric Tucker, Harry Glasbeek

Eric M. Tucker

The paper will proceed as follows. It tells the Westray story in two parts, first, the decision to set up the mine and, second, the operation of the mine. These events illuminate the salience of the broader political economic context to an understanding of what happened. Further, the story gives the lie to the assumptions which underpin health and safety regulation. Next, the paper details the implications of the political economy and the prevailing ideology for the enforcement of health and safety regulation. The paper then critically examines a component of, or prop for, the consensus theory which postulates that …


Renorming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?, Eric Tucker Feb 2015

Renorming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?, Eric Tucker

Eric M. Tucker

Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspective understood that the pursuit of protective labour law would produce recurring regulatory dilemmas requiring trade-offs between efficiency, equity and voice and/or between workers’ and employers’ interests. Recently, some scholars have argued that labour law needs to be renormed in ways that are market constituting rather than market constraining, and that this change would avoid …


Employee Or Independent Contractor?: Charting The Legal Significance Of The Distinction In Canada, Judy Fudge, Eric Tucker, Leah Vosko Feb 2015

Employee Or Independent Contractor?: Charting The Legal Significance Of The Distinction In Canada, Judy Fudge, Eric Tucker, Leah Vosko

Eric M. Tucker

The distinction between employees and independent contractors is crucial in determining the scope of application of labour and employment legislation in Canada, since the self-employed are, for the most part, treated as entrepreneurs who do not require the statutory protections accorded to employees. Yet statistics indicate that most self-employed people resemble employees more than entrepreneurs, in the sense that they are economically dependent on the sale of their labor and are often subject to inferior terms and conditions of work. Using four Canadian jurisdictions as a basis for this comparison, the authors demonstrate that there are wide variations in the …


Changing Boundaries Of Employment: Developing A New Platform For Labour Law, Judy Fudge, Eric Tucker, Leah Vosko Feb 2015

Changing Boundaries Of Employment: Developing A New Platform For Labour Law, Judy Fudge, Eric Tucker, Leah Vosko

Eric M. Tucker

In this paper, the authors consider whether the contract of employment should continue to be the central platform for delivering employment- related rights and benefits, such as access to labour standards and collective bargaining legislation. Labour market analysis has traditionally distinguished between employment and self-employment on the basis of a dichotomy between subordination and autonomy. whereas employees subordinate themselves to their employer in exchange for income and job security, the self-employed forego these benefits in order to gain autonomy and control over the means of their own production. This distinction is reflected in, and reinforced by, the boundary drawn in …


Shall Wagnerism Have No Dominion?, Eric Tucker Feb 2015

Shall Wagnerism Have No Dominion?, Eric Tucker

Eric M. Tucker

The Wagner Act Model has formed the basis of Canada’s collective bargaining regime since World War II but has come under intense scrutiny in recent years because of legislative weakening of collective bargaining rights, constitutional litigation defending collective bargaining rights and declining union density. This article examines and assesses these developments, arguing that legislatively we have not witnessed a wholesale attack on Wagnerism, but rather a selective weakening of some of its elements. In the courts, it briefly appeared as if the judiciary might constitutionalize meaningful labour rights and impede the erosion of Wagnerism, but recent judicial case law suggests …


Making The Workplace 'Safe' In Capitalism: The Enforcement Of Factory Legislation In Nineteenth Century Ontario, Eric Tucker Feb 2015

Making The Workplace 'Safe' In Capitalism: The Enforcement Of Factory Legislation In Nineteenth Century Ontario, Eric Tucker

Eric M. Tucker

The development of industrial capitalism in the second half of the nineteenth century in Ontario brought new and more serious hazards into the workplace and drew women and children into the waged labour force. As a result of working class lobbying and the efforts of middle class reformers, the state empowered itself to regulate health and safety conditions in factories and to protect child and female labour. The implementation of these regulations was left to an inspectorate which was armed with substantial legal powers to enforce the law. These powers were rarely invoked by the inspectors. However, the failure to …


Diverging Trends In Worker Health And Safety Protection And Participation In Canada, 1985-2000, Eric Tucker Feb 2015

Diverging Trends In Worker Health And Safety Protection And Participation In Canada, 1985-2000, Eric Tucker

Eric M. Tucker

Despite the comprehensiveness of neo-liberal restructuring in Canada, it has not proceeded uniformly in its timing or outcomes across regulatory fields and political jurisdictions. The example of occupational health and safety (OHS) regulation is instructive. This article compares recent OHS developments in five Canadian jurisdictions, Alberta, British Columbia, Nova Scotia, Ontario and the Federal jurisdiction. It finds that despite the adoption of a common model by all jurisdictions, there has recently been considerable divergence in the way that the elements of worker participation and protection have been combined. Modified power resource theory is used to explain a portion of this …


The Freedom To Strike In Canada: A Brief Legal History, Judy Fudge, Eric Tucker Feb 2015

The Freedom To Strike In Canada: A Brief Legal History, Judy Fudge, Eric Tucker

Eric M. Tucker

This paper looks at the "deep roots" of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms - to associate, to bargain collectively, and to strike - the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of …