Open Access. Powered by Scholars. Published by Universities.®

Labor and Employment Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Osgoode Hall Law School of York University

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 121 - 150 of 169

Full-Text Articles in Labor and Employment Law

Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin Apr 2013

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 …


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 Apr 2013

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 …


"That Indispensable Figment Of The Legal Mind": The Contract Of Employment At Common Law In Ontario, 1890-1979, Claire Isabel Mummé Jan 2013

"That Indispensable Figment Of The Legal Mind": The Contract Of Employment At Common Law In Ontario, 1890-1979, Claire Isabel Mummé

PhD Dissertations

“The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'.” Otto Kahn-Freund , Labour and the Law (London: Stevens, 1977). This study examines the legal evolution of the common law of employment contracts in Ontario between the 1890s and …


'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia Dec 2012

'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia

Articles & Book Chapters

This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-­‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders, …


A Model Of Responsive Workplace Law, David J. Doorey Jul 2012

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 Apr 2011

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 …


Who’S Running The Road?: Street Railway Strikes And The Problem Of Constructing A Liberal Capitalist Order In Canada, 1886-1914, Eric Tucker Jan 2010

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

Articles & Book Chapters

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 …


"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker Jan 2009

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

Articles & Book Chapters

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 …


Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn Jan 2008

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Articles & Book Chapters

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …


Silent Partners: The Role Of Unpaid Market Labor In Families, Lisa Philipps Jan 2008

Silent Partners: The Role Of Unpaid Market Labor In Families, Lisa Philipps

Articles & Book Chapters

The term 'unpaid market labor' refers to the direct contributions of unpaid family members to market work that officially belongs to another member of the household. Thus one individual may be construed legally as an owner or entrepreneur, but relatives may help out informally with business operations. Likewise, in corporate or public-service settings, certain employees rely on the unpaid help of an executive spouse or political wife. This paper argues that unpaid market labor is conceptually distinct from both paid work and unpaid domestic labor. Legal cases from Canada are used to illustrate the policy implications of this insight and …


Helping Out In The Family Firm: The Legal Treatment Of Unpaid Market Labor, Lisa Philipps Jan 2008

Helping Out In The Family Firm: The Legal Treatment Of Unpaid Market Labor, Lisa Philipps

Articles & Book Chapters

This article investigates the work of individuals who help out informally with a family member's job, often without pay. Examples include the relative who works in the back room of the family business, the executive spouse who hosts corporate functions, the political wife who campaigns with her husband, or the child who does chores on the family farm. The term "unpaid market labor" (UML) is used here to describe the ways that family members collaborate directly in paid activities that are legally and socially attributed to others. The practical legal problems that can arise in relation to UML are illustrated …


No Right (To Organize) Without A Remedy: Evidence And Consequences Of Failure To Provide Compensatory Remedies For Unfair Labour Practices In British Columbia, Sara Slinn Jan 2008

No Right (To Organize) Without A Remedy: Evidence And Consequences Of Failure To Provide Compensatory Remedies For Unfair Labour Practices In British Columbia, Sara Slinn

Articles & Book Chapters

Employees and unions encounter significant risks during union organizing and often see their efforts thwarted by employers. Labour law regimes attempt to minimize these risks by rendering unlawful a number of unfair labour practices (ULPs) employers can use to prevent unionization. But labour relations boards (LRBs) in Canada often avoid awarding full compensation for the harm ULPs cause, leading employers to still view ULPs as advantageous courses of action with only moderate associated costs.The author argues that this problem can be solved or greatly mitigated without the need for formal reforms, LRBs rather must come to embrace the full range …


Fragmenting Work And Fragmenting Organizations: The Contract Of Employment And The Scope Of Labour Regulation, Judy Fudge Oct 2006

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 …


Fairness At Work: Federal Labour Standards For The 21st Century, H. W. Arthurs Jan 2006

Fairness At Work: Federal Labour Standards For The 21st Century, H. W. Arthurs

Commissioned Reports, Studies and Public Policy Documents

On October 30, 2006 Commissioner Harry Arthurs delivered his report Fairness at Work: Federal Labour Standards for the 21st Century to the Minister of Labour, the Hon. Jean-Pierre Blackburn.


Pension Power: Unions, Pension Funds, And Social Investment In Canada, Jinyan Li Jan 2006

Pension Power: Unions, Pension Funds, And Social Investment In Canada, Jinyan Li

Articles & Book Chapters

This is a review of the book Pension Power: Unions, Pension Funds, and Social Investment in Canada.


Flexibilization, Globalization, And Privatization: Three Challenges To Labour Rights In Our Time, Katherine V. W. Stone Jan 2006

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 Oct 2005

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 Oct 2005

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 …


After Industrial Citizenship: Market Citizenship Or Citizenship At Work?, Judy Fudge Jan 2005

After Industrial Citizenship: Market Citizenship Or Citizenship At Work?, Judy Fudge

Articles & Book Chapters

This article sketches the rise and fall of industrial citizenship in Canada, and presents two very different models of citizenship that might replace it. It begins by defining the concept of citizenship, and explaining how industrial citizenship has conventionally been understood. It then traces the genealogy of industrial citizenship in Canadian labour law, and how the processes of feminization, deregulation, and globalization have challenged it as a normative ideal and undermined the conditions that have sustained it. The article concludes by considering two scenarios for industrial citizenship in the future: one in which the substance of citizenship is circumscribed by …


Book Review: The Accidental Republic, Eric Tucker Jan 2005

Book Review: The Accidental Republic, Eric Tucker

Articles & Book Chapters

No abstract provided.


What's Law Got To Do With It?: Historical Considerations On Class Struggle, Boundaries Of Constraint, And Capitalist Authority, Bryan D. Palmer Apr 2003

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 …


Diverging Trends In Worker Health And Safety Protection And Participation In Canada, 1985-2000, Eric Tucker Jan 2003

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

Articles & Book Chapters

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 …


Twenty Years Of Labour Law And The Charter, Dianne Pothier Jul 2002

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 …


Book Review: Managing Major Hazards: The Lessons Of The Moura Mine Disaster, Eric Tucker Jan 2000

Book Review: Managing Major Hazards: The Lessons Of The Moura Mine Disaster, Eric Tucker

Articles & Book Chapters

No abstract provided.


Class War: Ontario Teachers And The Courts, Harry J. Glasbeek Oct 1999

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 Jul 1998

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 Apr 1998

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 Oct 1996

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 Oct 1995

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.


The Faces Of Coercion: The Legal Regulation Of Labor Conflict In Ontario, 1880-1889, Eric Tucker Jan 1994

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

Articles & Book Chapters

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 …