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Articles 1 - 30 of 34
Full-Text Articles in Law
When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker
When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker
Osgoode Hall Law Journal
In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935, Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that …
Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall
Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall
Osgoode Hall Law Journal
In this article, I analyze a series of Canadian cases on union successor rights defining the circumstances in which labour rights should be transferred to a successor entity in the context of business sales, restructuring and subcontracting. My analysis casts doubt on a globally influential theory of legal interpretation, which I call the “old legality.” According to this theory, labour law is made not through conventional legal reasoning but through non-legal, pragmatic, and purposive applications of loose industrial relations standards. I claim that the old legality paradigm is analytically inaccurate and has the perverse effect of normalizing the status quo …
The Bunk House Rules: A Materialist Approach To Legal Consciousness In The Context Of Migrant Workers’ Housing In Ontario, Adrian Smith
The Bunk House Rules: A Materialist Approach To Legal Consciousness In The Context Of Migrant Workers’ Housing In Ontario, Adrian Smith
Osgoode Hall Law Journal
In this article, I tackle the controversy surrounding an application to convert an abandoned school into housing for migrant agricultural workers in Ontario. I examine how the written reactions of community residents to a proposed municipal zoning by-law amendment convey and invoke understandings of the legal regulation of temporary labour migration. Viewed through a legal consciousness analytical lens that has been reconstituted to attend to the material practices and contexts underpinning residents’ responses (a materialist approach to legal consciousness), the submissions intervene in the organization and regulation of agricultural labour. While rehearsing well-worn, racist colonial tropes, these responses (re)produce material …
“Rights Without Remedies”: Enforcing Employment Standards In Ontario By Maximizing Voice Among Workers In Precarious Jobs, Leah F. Vosko
“Rights Without Remedies”: Enforcing Employment Standards In Ontario By Maximizing Voice Among Workers In Precarious Jobs, Leah F. Vosko
Osgoode Hall Law Journal
Workers in Ontario, Canada are on the edge of a crisis in the enforcement of their minimum employment standards (ES). This crisis is shaped not only by well-documented deficiencies in the scope of labour protection but by the fact that the administration of the ES system has not kept pace with the increasing number of workers and workplaces requiring protection under the province’s employment standards act. Coupled with an outmoded complaint-based system, the dearth of support for ES enforcement is cultivating a situation in which an unprecedented number of workers are bearers of rights without genuine opportunities for redress. Responding …
The Limits Of Voice: Are Workers Afraid To Express Their Health And Safety Rights?, Wayne Lewchuk
The Limits Of Voice: Are Workers Afraid To Express Their Health And Safety Rights?, Wayne Lewchuk
Osgoode Hall Law Journal
This article reconsiders the shift in Canada from an exclusively government-regulated occupational health and safety system to the Internal Responsibility System (IRS). The IRS gives workers rights, or “voice,” to manage, know about, and refuse unsafe working conditions. I present new evidence that worker voice and the IRS have weakened with the decline of unions and the rise of precarious employment. Survey data are analyzed from Ontario workers who rated the likelihood that raising a health and safety concern with their current employer would negatively affect their future employment. My analysis models how workers’ sex, race, unionization, sector, and degree …
Solving The Problem From Hell: Tripartism As A Strategy For Addressing Labour Standards Non-Compliance In The United States, Janice Fine
Osgoode Hall Law Journal
The crises of wage theft and industrial accidents in low-wage America reflect erosion of the social contract but they also reflect a crisis in labour standards enforcement. This article draws upon archival material, case studies, and interviews to make the case for tripartism—an enforcement regime that partners workers’ organizations with government inspectors to patrol workers’ industries and labour markets for unfair competition. It extends to the federal level previous work in which Jennifer Gordon and i have documented dynamic contemporary examples of tripartism at the state and local levels. The article explores historical precedents for tripartist collaboration on the federal …
Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker
Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker
Osgoode Hall Law Journal
No abstract provided.
Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin
Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin
Osgoode Hall Law Journal
Legislation enacted in many states following the 2010 elections in the United States strengthened unilateral public employer control and weakened employee voice. This rebalancing of power occurred in the context of state public employee labour relations acts modeled on the National Labor Relations Act (NLRA), but with a narrower scope of bargaining than in the private sector. This narrow scope channels unions’ voice away from the quality of public services and towards protecting members from the effects of decisions unilaterally imposed by management. The Supreme Court of Canada has held that the freedom of association guaranteed by the Charter of …
Attacks On Public-Sector Bargaining As Attacks On Employee Voice: A (Partial) Defence Of The Wagner Act Model, Joseph Slater
Attacks On Public-Sector Bargaining As Attacks On Employee Voice: A (Partial) Defence Of The Wagner Act Model, Joseph Slater
Osgoode Hall Law Journal
The attacks on public-sector union rights in the United States that began in 2011 are one of the most important developments in labour law in recent memory. These events shed light on employee voice issues, and on the continuing viability of the “Wagner Act” model. While declining union density rates in the private sector have prompted some to question this model, high-density rates in the public sector show that unions can flourish under it. This article gives an overview of public-sector unions in the US and summarizes the recent attacks on their rights. It then addresses rulings in both Missouri …
Employee Self-Representation And The Law In The United States, Matthew W. Finkin
Employee Self-Representation And The Law In The United States, Matthew W. Finkin
Osgoode Hall Law Journal
Collective representation has been a legal focal point in the United States for nearly a century. Little attention has been paid to the law in the obverse situation: individual self-representation. This essay explores how, on some issues, the law supports a regime of individual bargaining while, on others, is antithetical to it. In other words, US law is incoherent on the matter. By reference to law in Australia and New Zealand, this paper argues that more legal space can be created for employees to represent themselves.
Workplace Voice And Civic Engagement: What Theory And Data Tell Us About Unions And Their Relationship To The Democratic Process, Alex Bryson, Rafael Gomez, Tobias Kretschmer, Paul Willman
Workplace Voice And Civic Engagement: What Theory And Data Tell Us About Unions And Their Relationship To The Democratic Process, Alex Bryson, Rafael Gomez, Tobias Kretschmer, Paul Willman
Osgoode Hall Law Journal
We offer an explanation for the phenomenon of declining democratic engagement by assuming that what happens at work is the primary driver of what occurs outside of the workplace. If workers are exposed to the formalities of collective bargaining and union representation, they also perhaps increase their attachment to, and willingness to participate in, structures of democratic governance outside of the workplace as well. In order for this argument to hold, one first needs to test whether individual union members are more prone to vote and participate in civil society than non-members: other research refers to this as the union …
A Model Of Responsive Workplace Law, David J. Doorey
A Model Of Responsive Workplace Law, David J. Doorey
Osgoode Hall Law Journal
The North American model of workplace law is broken, characterized by declining frequency of collective bargaining, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether the theory of “decentred regulation” offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective on workplace regulation today is managerialist. Politicians with a managerialist orientation reject both the pluralist idea that collective bargaining is always preferred and the neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers …
Assessing The Regulation Of Temporary Foreign Workers In Canada, Sarah Marsden
Assessing The Regulation Of Temporary Foreign Workers In Canada, Sarah Marsden
Osgoode Hall Law Journal
There has been an increase in the number of incoming temporary migrant workers to Canada over the past decade. In this article, I critically assess recent changes in the law governing temporary migration to Canada by using theoretical tools from the fields of sociology, geography, and legal geography. A multidisciplinary framework to understand Canada's labour migration policies is provided. Within the socio-historical context of migrant labour regulation in Canada, I argue that political and regulatory developments function to further entrench segregation and exclusion of foreign workers by maintaining a subclass of flexible labour. Specifically, I show that Canada's current temporary …
Fragmenting Work And Fragmenting Organizations: The Contract Of Employment And The Scope Of Labour Regulation, Judy Fudge
Osgoode Hall Law Journal
This article diagnoses the conceptual and normative crisis of the scope of labour protection as resulting from the conception of employment as a personal and bilateral contract between an employee and a unitary employer that is characterized by the employee's subordination. It argues that the related fragmentation of organizations and fragmentation of work reveals the extent of the problem with this legal conceptualization of employment. The article offers an approach to reconceptualizing the scope of labour protection that is based on an understanding of personal work arrangements and enterprises as activities. It justifies this approach in terms of the goals …
Flexibilization, Globalization, And Privatization: Three Challenges To Labour Rights In Our Time, Katherine V. W. Stone
Flexibilization, Globalization, And Privatization: Three Challenges To Labour Rights In Our Time, Katherine V. W. Stone
Osgoode Hall Law Journal
Three dynamics are coalescing to reshape labour relations in the twenty-first century in the United States: They are flexibilization, globalization, and privatization. Flexibilization refers to the changing work practices by which firms no longer use internal labour markets or implicitly promise employees lifetime job security, but rather seek flexible employment relations that permit them to increase or diminish their workforce, and reassign and redeploy employees with ease. Globalization refers to the increase in cross-border transactions in the production and marketing of goods and services that facilitates firm relocation to low labour cost countries. And privatization refers to the rise of …
An Analysis Of The Effects On Parties' Unionization Decisions Of The Choice Of Union Representation Procedure: The Strategic Dynamic Certification Model, Sara Slinn
Osgoode Hall Law Journal
This article proposes a new theoretical framework-the strategic dynamic certification model-to explain how union certification processes operate. Statutory certification procedures are not neutral. Instead, they produce particular incentives, disincentives, and opportunities for employers, unions, and employees, and these affect the outcomes of the procedure. Empirical evidence confirms this model's ability to analyze the certification process and the outcomes of unionization attempts. In particular, this model explains why the change from a card-check to a mandatory representation vote encourages unlawful employer conduct, enhances the effectiveness of union avoidance activities, and deters employee participation in the unionization decision. The article concludes that, …
Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation, David J. Doorey
Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation, David J. Doorey
Osgoode Hall Law Journal
An important tool of "decentred" regulation, including reflexive law, is corporate information disclosure. Disclosure regulation can have an important normative influence on corporate behaviour because it introduces a risk element that must be managed by corporate leaders. The challenge for regulators is to identify the scope of disclosure that will cause corporate responses of the sort desired by the state. This article considers the potential role of disclosure regulation as a tool for influencing labour practices beyond the borders of the regulating state and, in particular, within the vast global supply chains of multinational corporations. In the context of improving …
What's Law Got To Do With It?: Historical Considerations On Class Struggle, Boundaries Of Constraint, And Capitalist Authority, Bryan D. Palmer
What's Law Got To Do With It?: Historical Considerations On Class Struggle, Boundaries Of Constraint, And Capitalist Authority, Bryan D. Palmer
Osgoode Hall Law Journal
This article offers a preliminary theoretical statement on the law as a set of boundaries constraining class struggle in the interests of capitalist authority. But those boundaries are not forever fixed, and are constantly evolving through the pressures exerted on them by active working-class resistance, some of which takes the form of overt civil disobedience. To illustrate this process, the author explores the ways in which specific moments of labour upheaval in 1886, 1919, 1937, and 1946 conditioned the eventual making of industrial legality. When this legality unravelled in the post-World War II period, workers were left vulnerable and their …
Twenty Years Of Labour Law And The Charter, Dianne Pothier
Twenty Years Of Labour Law And The Charter, Dianne Pothier
Osgoode Hall Law Journal
This article critically reviews the Charter jurisprudence of the Supreme Court of Canada relating to labour law. The rejection of the right to strike and to bargain collectively as part of freedom of association reflect substantial judicial deference to legislative policy choices. Recently, however, a constitutional right of unfair labour protection for particularly vulnerable workers shows some judicial willingness to intervene. While freedom of expression provides significant scope to union supporters, picketing and leafleting are still subject to wide restraint, the exact parameters of which remain unclear. The Charter has had only a modest effect on labour law. Even successful …
Class War: Ontario Teachers And The Courts, Harry J. Glasbeek
Class War: Ontario Teachers And The Courts, Harry J. Glasbeek
Osgoode Hall Law Journal
In 1997, the government of Ontario met with unexpected opposition to its changes to the education system with the introduction of Bill 160, the Education Quality Improvement Act, culminating in a province-wide strike by teachers. In reaction, the government sought to divert the conflict into the courts. Although the teachers were initially successful in court, the strike was not, and many of the strikers' objectives were not met. The author argues that the law of injunctions and collective bargaining shifted and narrowed the scope of the conflict, and reduced the political power of the teachers. The litigation surrounding Bill 160 …
The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky
The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky
Osgoode Hall Law Journal
Under Canadian and American labour law, organized workers must be divided into bargaining units. In order to negotiate with employers on behalf of workers, these bargaining units must be certified. This entails receiving the approval of the appropriate labour relations board. The author argues that this requirement informs the outcomes of collective bargaining. This article takes the position that certification is a subtle method for maintaining the existing social order and the consequent distribution of power, without actually appearing to do so. Certification can be understood as a tool for fragmenting the potential power of labour's unity. The present analysis …
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Osgoode Hall Law Journal
This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …
A Historical Perpective On Contemporary Challenges In Workers' Compensation, Terence G. Ison
A Historical Perpective On Contemporary Challenges In Workers' Compensation, Terence G. Ison
Osgoode Hall Law Journal
Workers' compensation has entered a period of rising complexity and increasing pressures for system change. This article explains the extent to which important assumptions and assertions made in this process are historically correct. The discussion includes the historical interaction of tort liability with workers' compensation, and the current proposals for "privatization."
Accommodating Equality In The Unionized Workplace, Katherine Swinton
Accommodating Equality In The Unionized Workplace, Katherine Swinton
Osgoode Hall Law Journal
This article explores the appropriate relationship between human rights and collective bargaining laws through an examination of the Supreme Court of Canada's jurisprudence on the duty to accommodate. While collective bargaining can be an important force to promote equality for disadvantaged groups, resistance to changing the terms of collective agreements to accommodate those groups can arise, especially when other employees' seniority rights are affected. The emerging jurisprudence suggests that seniority rights will be respected in many situations, especially in layoffs, but the article outlines circumstances in which accommodation will be necessary to vindicate equality rights.
Dealing With Sexual Harrassment In The Workplace: The Promise And Limitations Of Human Rights Discourse, Fay Faraday
Dealing With Sexual Harrassment In The Workplace: The Promise And Limitations Of Human Rights Discourse, Fay Faraday
Osgoode Hall Law Journal
This paper examines the value of liberal rights in launching a political movement against sexual harassment, while reassessing their limitations for changing the practice of harassment. For rights to benefit women, decision makers must mean the same thing women do when speaking of sexual harassment. The paper analyzes how dominant ideology misshapes the delivery of rights against sexual harassment, normalizes male aggression, and reconstructs the struggle into one not about power but about taste, free speech, and a conflict between abstract rights. The paper examines how other rights discourses can empower women to combat harassment in a proactive way.
Agenda For Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics, Harry J. Glasbeek
Agenda For Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics, Harry J. Glasbeek
Osgoode Hall Law Journal
Statutory collective bargaining has been the linchpin of Canadian industrial relations since World War I. It yielded benefits to large segments of workers, although its reach and impact were always exaggerated. As the economic entente which underpinned the scheme is unravelling, workers fight desperately to hang onto a system which, in retrospect, looks even better than it did before. But the narrow, male-centred, economic premises of collective bargaining make statutory collective bargaining reform a poor vehicle with which to offset employer attacks on the working classes. An agenda which seeks to link the economic and the political, men and women, …
Australian Compulsory Arbitration: Will It Survive Into The Twenty-First Century?, Richard Mitchell, Richard Naughton
Australian Compulsory Arbitration: Will It Survive Into The Twenty-First Century?, Richard Mitchell, Richard Naughton
Osgoode Hall Law Journal
Over the past decade Australia has struggled to come to grips with the decline of its traditional economic and industrial structures, and the need to accommodate itself to the international context. Since 1900 Australia has had an industrial relations system highly regulated by law. Economic and political pressures are challenging the continuing relevance of this system, and particularly its ability to adapt to the need for an "enterprise-based" industrial relations culture. This article examines the type of industrial relations system erected under compulsory arbitration in Australia, its impact upon various aspects of the labour market, and the incremental nature of …
Spacing Out: Towards A Critical Geography Of Law, Nicholas K. Blomley, Joel C. Bakan
Spacing Out: Towards A Critical Geography Of Law, Nicholas K. Blomley, Joel C. Bakan
Osgoode Hall Law Journal
The authors analyze the interconnections between space, law, and power and forge links between critical studies in law and geography. Analytical categories of space-for example, the divide between public and private space, or the concept of national citizenship-are all politically constructed. The authors analyze Canadian and American concepts of federalism and their impact on regulating worker safety. A common judicial mapping of work, local space, and state regulation determines whether local officials have enforcement authority in contexts where national worker safety regulations apply. Through this analysis, the authors illustrate the potential for future studies in critical legal geography.
Administrative And Criminal Penalties In The Enforcement Of Occupational Health And Safety Legislation, R. M. Brown
Administrative And Criminal Penalties In The Enforcement Of Occupational Health And Safety Legislation, R. M. Brown
Osgoode Hall Law Journal
The sanction for occupational health and safety offences in Ontario is a regulatory prosecution in provincial criminal court. In contrast, regulatory officials assess administrative penalties in British Columbia and the United States. A larger proportion of offenders are punished under these administrative processes than in the Ontario criminal justice system, and the average administrative penalty generally is higher than the average criminal fine. In addition, a system of administrative penalties is better able to identify employers who warrant punishment because regulators apply the civil standard of proof, attach great weight to a firm's compliance history, and do not reserve penalties …
Labouring Outside The Charter, David M. Beatty
Labouring Outside The Charter, David M. Beatty
Osgoode Hall Law Journal
In this essay, Professor Beatty reviews the leading Charter cases decided by the Supreme Court of Canada which consider the constitutionality of a variety of different labour laws. In reasoning and result, he finds that by and large these cases provide strong support for those legal scholars who are generally sceptical of the law and critical of the courts and who predicted that, even with the Charter, it was unlikely the Court would change the antipathy judges have historically displayed to the interests of workers and their associations. However, while these legal theorists may draw some comfort from these decisions …