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Articles 121 - 150 of 163
Full-Text Articles in Labor and Employment Law
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
"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
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 …
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 …
Helping Out In The Family Firm: The Legal Treatment Of Unpaid Market Labor, Lisa Philipps
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 …
Silent Partners: The Role Of Unpaid Market Labor In Families, Lisa Philipps
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 …
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
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
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
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 …
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 …
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, …
After Industrial Citizenship: Market Citizenship Or Citizenship At Work?, Judy Fudge
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
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
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
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
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
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
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.
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
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 …
Book Review: Work And Health, Eric Tucker
Book Review: Work And Health, Eric Tucker
Articles & Book Chapters
No abstract provided.
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 …