Labor and Employment Law Commons^™

Labour Effects Of Corporate Groups In Canada, Eric Tucker, Abdalla Barqawi

Articles & Book Chapters

In Canada, the norms of capitalist legality are deeply entrenched. As a result, businesses are generally free to structure their affairs in any way that serves their interests. One of the most foundational norms is that each corporation has a distinct legal personality. Not only does this protect shareholders and directors from personal responsibility for the corporation’s liabilities, but it also means that one corporation is not normally liable for the obligations of another corporation even though both corporations are owned and controlled by the same individuals.

On Writing Labour Law History: A Reconnaissance, Eric M Tucker

Articles & Book Chapters

Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but …

Improving Employment Standards And Their Enforcement In Ontario: A Research Brief Addressing Options Identified In The Interim Report Of The Changing Workplaces Review, Leah F. Vosko, John Grundy, Eric Tucker, Andrea M. Noack, Alan Hall, Mark P. Thomas, Rebecca Casey, Kiran Mirchandani, Guliz Akkaymak

Commissioned Reports, Studies and Public Policy Documents

The quality of employment available to Ontarians is a growing concern among legislators, policymakers, and the general public alike. There is widespread recognition that precarious employment and the challenges posed by the associated realignment of risks, costs and power relations between employees and employers require improvements to employees’ legislative protection. Ontario’s Changing Workplaces Review (CWR) affords us an opportunity to take stock of important changes taking place the province’s labour market. As the Terms of Reference introduced at the outset of the CWR note, “far too many workers are experiencing greater precariousness” in employment in Ontario today than in the …

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

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 …

A Law Of Just Transitions?: Putting Labor Law To Work On Climate Change, David J. Doorey

Osgoode Legal Studies Research Paper Series

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept …

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

Articles & Book Chapters

While data on the extent of outsourcing by Canadian businesses is scant, there is general agreement that over the last several decades the phenomenon has increased and taken a variety of forms including the use of global supply-chains (offshoring) and domestic subcontracting (outsourcing).175 In this way, large businesses have been able to shed responsibility for the employees who actually perform the work. David Weil has aptly characterized this phenomenon as “fissuring”, which can take a variety of forms including sub-contracting, franchising, and other arrangements.176 A related phenomenon that will be addressed here is the use of temporary employment agencies through …

Equality, Non-Discrimination And Work-Life Balance In Canada, Eric Tucker, Alec Stromdahl

Articles & Book Chapters

The principle that everyone has a right to equal treatment was first entrenched in Canadian law in the aftermath of the Second World War when legislation began to be enacted prohibiting discrimination on the basis of sex, race and religion. Since that time, the grounds of prohibited discrimination have steadily increased. These grounds will be discussed in greater detail in the answer to question 1. Because Canada is a federal state and courts have held that legislative authority over human rights is primarily a matter of provincial jurisdiction, there is no uniform law of Canada. Nevertheless, the provisions of statutory …

Working Time And Flexibility In Canada, Eric Tucker, Leah F. Vosko

Articles & Book Chapters

Canada is a federal state and, under its constitution, legislative jurisdiction over labour and employment is vested primarily in its provinces and territories. As a result, there is no generally applicable national regime regulating hours of work, but rather a patchwork of laws with limited reach. It is not possible to cover all these laws in a brief overview and so we have chosen to focus on the laws of Ontario, Canada’s most populous province. However, it is also fair to say that while provincial laws vary, the law of Ontario reflects the general pattern of hours of work laws …

Employment Standards Enforcement: A Scan Of Employment Standards Complaints And Workplace Inspections And Their Resolution Under The Employment Standards Act, 2000, Leah F. Vosko, Andrea M. Noack, Eric Tucker

All Papers

No abstract provided.

Maximizing Opportunity, Minimizing Risk: Aligning Law, Policy And Practice To Strengthen Work-Integrated Learning In Ontario, Joseph F. Turcotte, Leslie Nichols, Lisa Philipps

All Papers

A broad consensus is emerging in Ontario and at the federal level in favour of expanding postsecondary students’ access to experiential or “work-integrated learning” (WIL) opportunities. One of the challenges in implementing this vision is navigating the complex legal status of students as they leave campus and enter workplaces in a wide range of industries and roles. This study aims to support these efforts by mapping the current legal landscape for WIL to identify both risks and opportunities for students, post-secondary institutions (PSIs) and placement hosts alike (referred to collectively in this study as “WIL participants”). It makes recommendations to …

Unionization At Justice Canada: A Case Study, Andrij Roman Kowalsky

PhD Dissertations

In April 2005, non-management lawyers working at the federal Department of Justice Canada (DOJ) were recognized by the Public Service Labour Relations Act (PSLRA) as employees. This dissertation explores DOJ lawyers unionizing by addressing two research questions: (1) what led DOJ lawyers to unionize with the Association of Justice Counsel (AJC)? and (2) what was the AJC’s experience in negotiating a first collective agreement?

The dissertation is organized using a conventional structure. The literature review presented in Chapter 2 maps the academic study of lawyer unionization. Chapter 3 elaborates on the dissertation’s research design as a case study. Chapter 4 …

Labour Law And Transnational Law: The Fate Of Legal Fields / The Trajectory Of Legal Scholarship, Harry Arthurs

Conference Papers

In this lecture, I’m going to explain how and why I came to write my article, The Law of Economic Subordination and Resistance. I hope that by doing so, I will be able to shed some light not only on my own field of labour law, but on the larger problem of how legal fields or domains of legal knowledge, come into existence, change or become obsolete, and in the end are either transformed or superseded altogether. I will be talking about labour law, but I hope you will be thinking about transnational law. I’m going to try to persuade …

Cinquante Ans D’Analyses Des Mutations Des Normes Du Travail En Amérique Du Nord: Voyage Comparatiste Autour De La Pensée De Harry Arthurs, Marie-Ange Moreau

All Papers

La pensée de Harry Arthurs permet de parcourir les changements intervenus dans l’analyse des protections des travailleurs depuis 50 ans en Amérique du Nord en raison du développement de la « nouvelle économie » qui sape les constructions anciennes du droit du travail élaborées à l’époque fordiste. Ses analyses construites à partir d’une approche de relations industrielles, et du « socio legal pluralism », conduisent au-delà de l’approche comparatiste à poser des questions centrales, autour des transformations normatives, de leurs causes, de leur sens, de leur avenir, autour de la citoyenneté sociale dans le monde post-moderne, autour des frontières du …

Origins And Prospects For Employee Life And Health Trusts In Canada, S. B. Archer

Osgoode Legal Studies Research Paper Series

A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and …

Collective Bargaining, Sara Slinn

Commissioned Reports, Studies and Public Policy Documents

This research project reviews and evaluates the academic literature relating to obtaining and maintaining collective bargaining rights under the OLRA. Research indicates that procedural changes to representation processes including the mandatory representation vote significantly reduced the likelihood of certification, and that these effects were concentrated in more vulnerable units. This may partly be due to greater opportunity for delay and employer resistance under vote procedure compared to under card-based certification. The research also indicates that delay has significant effects on certification outcomes, as do ULP complaints and employer resistance tactics. ULPs have negative long-term effects, and are associated with difficulties …

Succession And Transfer Of Businesses In Canada, Eric Tucker, Christopher Grisdale

Articles & Book Chapters

Canada is a liberal market economy and as such the freedom of owners of capital to transfer businesses is not heavily regulated and the rights of workers affected by those transfers are limited. Before discussing those rights some preliminary matters need to be addressed.

Introduction: War Measures And The Repression Of Radicalism, 1914-1939, Barry Wright, Eric Tucker, Susan Binnie

Articles & Book Chapters

This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. it follows an approach similar to that of others in the series. the central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. the aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context.

Workplace Harassment: A Cross-Jurisdictional Comparative Analysis Of Legislative Responses To This Workplace Phenomenon In Canada, Kayla Alice Carr

LLM Theses

This thesis investigates different statutory models Canadian legislatures have enacted to address workplace harassment. It adopts a qualitative, comparative case study approach, providing an in-depth comparative analysis of legislation from Québec, Saskatchewan, Ontario, Manitoba and British Columbia. Through this analysis, this thesis outlines the ways in which workplace harassment has been regulated in Canada, why that model was adopted by the jurisdiction and how that model measures against other models for legislating workplace harassment. Through an examination of existing literature relating to workplace harassment stemming from three theoretical paradigms and an analysis of a model legislative framework, this thesis creates …

Labour Law And Triangular Employment Growth, Timothy John Bartkiw

LLM Theses

This thesis is concerned with understanding the relationship between labour law and triangular employment growth, and particularly in "staffing services" contexts. A review of alternative explanations for growth in triangular employment within three theoretical paradigm (neoclassical, institutionalist, and critical) illustrates the theoretical space for conceiving of a relationship between the particularities of labour law and triangular employment growth. To this end, the thesis develops the concept of a regulatory differential, or ways in which a legal regime may produce differential regulatory effects as between direct and triangular forms of employment. A typology of regulatory differentials is outlined. Further, a discussion …

From Theory And Research To Policy And Practice In Work And Employment - And Beyond?, Harry W. Arthurs

Articles & Book Chapters

This paper was delivered as the keynote address to the 50th Annual Conference, Canadian Industrial Relations Association, 29 May 2013. My thanks to Alex Zamfir, JD Candidate, Osgoode Hall Law School, for his editorial and research assistance.

A Response, Fay Faraday, Eric Tucker

Articles & Book Chapters

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

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

All Papers

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

The "Majestic Equality" Of The Law: Why Constitutional Strategies Do Not Produce Equality, Harry Arthurs

All Papers

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth …

Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker

Osgoode Hall Law Journal

No abstract provided.

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.

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 …

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 …

“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 …

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 …