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Articles 1 - 27 of 27
Full-Text Articles in Labor and Employment Law
Layers Of Vulnerability In Occupational Health And Safety For Migrant Workers: Case Studies From Canada And The Uk, Eric Tucker, Malcolm Sargeant
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
"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
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
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
"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
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
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
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
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
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
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
"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
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
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
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
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
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
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
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
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
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
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 …
Shareholder And Director Liability For Unpaid Workers' Wages In Canada: From Condition Of Granting Limited Liability To Exceptional Remedy, Eric Tucker
Eric M. Tucker
No abstract provided.
The Road From Westray: A Predictable Path To Disaster?, Eric Tucker
The Road From Westray: A Predictable Path To Disaster?, Eric Tucker
Eric M. Tucker
No abstract provided.
Worker Participation In Health And Safety Regulation: Lessons From Sweden, Eric Tucker
Worker Participation In Health And Safety Regulation: Lessons From Sweden, Eric Tucker
Eric M. Tucker
The toll capitalist production takes on the lives and health of workers has been, and continues to be one of its least acceptable features. For this reason, the labour movement and political parties seeking labour's support have often made reform of occupational health and safety regulation a major objective. In recent years, for example, the New Democratic Party in Ontario has vociferously criticized the failures of the governments of the day to protect adequately the workers in the province. Their recent electoral success provides a great opportunity to improve the work environment and to strengthen the ability of the labour …
Pluralism Or Fragmentation?: The Twentieth-Century Employment Law Regime In Canada, Judy Fudge, Eric Tucker
Pluralism Or Fragmentation?: The Twentieth-Century Employment Law Regime In Canada, Judy Fudge, Eric Tucker
Eric M. Tucker
In 1947, Bora Laskin, the doyen of Canadian collective bargaining law, remarked that "Labour relations as a matter for legal study... has outgrown any confinement to a section of the law of torts or to a corner of the criminal law. Similarly, and from another standpoint, it has burst the narrow bounds of master and servant." That standpoint was liberal pluralism, which comprises collective bargaining legislation administered by independent labour boards and a system of grievance arbitration to enforce collective agreements. After World War II, it came to dominate our understanding of labour relations law such that, according to Laskin, …
The Determination Of Occupational Health And Safety Standards In Ontario 1860-1982: From Markets To Politics To...?, Eric Tucker
The Determination Of Occupational Health And Safety Standards In Ontario 1860-1982: From Markets To Politics To...?, Eric Tucker
Eric M. Tucker
The author reviews the historical development of the decision-making frameworks within which courts and the Legislature have made choices regarding the allocation of risks to health and safety in the workplace. Arguing that this development has been conditioned by the necessity of satisfying in a capitalist democracy conflicting demands to facilitate capital accumulation and to justify to the electorate the manner in which choices regarding the structure of the processes of production have been made, the author contends that recent pressure to adopt cost-benefit analysis to satisfy the demands of legitimation and accumulation, and challenges its adequacy as a normative …