Labour, Courts, and the Cunning of History (original) (raw)
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Labour (Committee on Canadian Labour History)
In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four grounds, one of which was that Canadian labour history supports the view that collective bargaining had become recognized as a fundamental right prior to the Charter. This article critically reviews the court's labour history and argues that it erroneously asserts that workers enjoyed a right to bargain that entailed a correlative duty on employers to negotiate in good faith prior to the passage of modern collective bargaining legislation during and in the aftermath of World War II. As well, it criticizes the court's method of selectively extracting passages from the work of labour historians while ignoring the critical insights ...
The Supreme Court of Canada and the Right to Bargain Collectively in Canada and Beyond
2008
In June 2007, the Supreme Court of Canada expressly overruled twenty years of jurisprudence that interpreted the freedom of association as excluding collective bargaining. This about face by the Supreme Court was unexpected. What gave rise to this remarkable decision and what does it portend for the role of the courts in labour relations in Canada and beyond? The recent successes before courts have led some observers to suggest that it may now be a propitious time for a coordinated and proactive litigation strategy to vindicate labour's collective rights. This article offers some preliminary answers to these broader questions and issues by focussing on the Supreme Court's decision in the Health Services and Support case.
For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did not provide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter’s rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could be applied in pursuit of greater justice in the workplace while others were thankful that the courts were not interfering with legislative formulation of collective bargaining law and policy. Slowly, however, the courts have come to a different view of the Charter, finding that its values serve to provide protection for picketing, and in a sweeping revision of former jurisprudence in 2007 holding that the guarantee of freedom of association does provide protection for collective bargaining. This article describes the changing judicial views of the Charter through three distinct periods, each roughly a decade long: the formative period, the period of consolidation, and the period of re-assessment. It also traces some of the academic reaction to these developments. It concludes by an assessment of how trade unions are attempting to harness the changing view of the Charter to pursue a variety of challenges to the existing legislated collective bargaining schemes in Canada. In doing so, the paper uses the metaphor of the Charter as a cathedral, with the judges and academic commentators as artists painting a variety of views of the Cathedral. It is only through assessing the multiplicity of views that one can hope to achieve even a partial understanding of the Charter’s role in Canadian labour law. Pendant les vingt-cinq premières années qui ont suivi l’adoption de la Charte canadienne des droits et libertés, il a semblé qu’elle n’aurait que peu d’incidences sur les lois canadiennes sur le travail. La Cour suprême du Canada estimait que la garantie de liberté d’association prévue dans la Charte ne couvrait pas le droit de faire la grève et n’offrait pas de protection pour la négociation collective. Les règles de common law en matière de piquetage n’étaient pas visées par les dispositions de la Charte sur la liberté d’expression. Les observateurs du milieu universitaire étaient partagés sur la question de savoir s’il s’agissait d’une bonne ou d’une mauvaise chose; certains exprimaient l’espoir que la Charte puisse être appliquée dans la poursuite d’une meilleure justice en milieu de travail, d’autres étaient simplement reconnaissants que les tribunaux ne s’immiscent pas dans la formulation par le pouvoir législatif des lois et des politiques en matière de négociation collective. Les tribunaux en sont toutefois lentement venus à adopter une opinion différente de la Charte et ont conclu que ses valeurs servent à offrir une protection pour le piquetage, et en 2007, s’écartant remarquablement de la jurisprudence existante, ils ont conclu que la garantie de liberté d’association confère une protection pour la négociation collective.Cet article décrit l’évolution de la jurisprudence en ce qui a trait à la Charte pendant trois périodes, chacune étant à peu près d’une décennie : la période formative, la période de consolidation et la période de réévaluation. Il y est aussi question de la réaction de certains auteurs et observateurs à ces développements. L’article conclut sur une évaluation de la façon dont les syndicats tentent de profiter du changement de point de vue sur la Charte pour poursuivre diverses contestations des régimes de négociation collective qui existent actuellement au Canada. Ce faisant, l’article considère métaphoriquement la Charte comme une cathédrale, les juges et les observateurs du milieu universitaire étant des artistes qui en peignent chacun une vue différente. Ce n’est qu’en procédant à un examen de la multiplicité de vues que l’on peut espérer comprendre, ne fût-ce que partiellement, le rôle de la Charte en droit canadien du travail.
Critique of Collective-Bargaining Models in Canada
In the spring/summer 2017 edition of Our Schools/Our Selves, most of the articles are related to the resistance by the Nova Scotia teachers to the repressive liberal government of Stephen McNeil. Brian Forbes' article " The Assault on Teachers' Collective Bargaining Rights in Nova Scotia, " for instance, outlines how this government passed legislation that restricted the capacity of public sector unions to negotiate with their employer—the government of Stephen McNeil. The purpose of this article, though, is not to review the articles in the journal. Rather, it is to point out and criticize the hidden standard that is uncritically assumed by most of the authors of articles in the journal. To that end, a summary of some of Forbes' description of teachers' points of resistance to the high-handed methods of the McNeil government is provided in the first section. The purpose of this summary, however, is to provide the background for a critique of the implicit assumption by Forbes (and many of the other authors of the spring/summer edition) that the typical model of collective bargaining and the corresponding collective agreements constitute something that is fair or just to the members of the contract. That critique is first found in the second section of the article. Jane McAlevey's alternative approach to collective bargaining (only briefly referred to by Ben Sichel, (2017) in his article, " Teachers Unions Can Win: Let's Get to Work ") is described, and it is argued that her alternative model is superior to the typical model implicitly advocated by most of the authors. On the other hand, since McAlvey's approach also has its limitations-given the context of a class of employers-her approach is in turn criticized for assuming that a collective agreement ratified using her approach is somehow fair or just. Such a critique is found in the third section, and has both a practical aspect and a theoretical aspect to it.
Brave New Words: Labour, The Courts and the Canadian Charter of Rights and Freedoms
Windsor Yearbook of Access to Justice
In Health Services and Support – Facilities Subsector BargainingAssociation v. British Columbia, [2007] 2 S.C.R.391, the Supreme Court of Canada overturned precedent andconcluded “that the grounds advanced in the earlier decisions forthe exclusion of collective bargaining from the Charter’s protectionof freedom of association do not withstand principled scrutinyand should be rejected” (at para. 22). The author exploresthe Supreme Court of Canada’s change of heart and what thischange implies, not only for constitutional doctrine, but also forwhat the Court understands about the governance of the post-Fordist world of work. She situates the Court’s reasoning in afew key cases dealing with labour’s distinctive rights – to bargaincollectively and to strike – in the social context that both shapesthe legal discourse about labour rights and influences organizedlabour’s power. She considers the paradox of the Supreme Court’sembrace of Fordist labour rights in a post-Fordist economy, andsug...
Industrial Law Journal, 2008
In June 2007, the Supreme Court of Canada expressly overruled twenty years of jurisprudence that interpreted the freedom of association as excluding collective bargaining. This about face by the Supreme Court was unexpected. What gave rise to this remarkable decision and what does it portend for the role of the courts in labour relations in Canada and beyond? The recent successes before courts have led some observers to suggest that it may now be a propitious time for a coordinated and proactive litigation strategy to vindicate labour's collective rights. This article offers some preliminary answers to these broader questions and issues by focussing on the Supreme Court's decision in the Health Services and Support case.
Judicial Development of Collective Labour Rights – Contextually
The Supreme Court of Canada’s decision in B.C. Health Services, holding that collective bargaining attracts Charter protection, emphasizes the importance of context in constitutional interpretation. The author agrees with the Court in looking to context as part of a purposive approach to interpretation of laws, and he argues that such an approach can be compared to the way in which labour laws have been developed in Israel — a country which, in his view, is a useful source of comparative law for Canada. In an effort to respond to changing realities in the labour market and labour relations (most notably the weakening of trade unions), Israeli judges have in recent years created a number of collective rights in the area of freedom of association, collective bargaining, and strikes. On the basis of the experience of Israeli courts in developing new workplace protections where they are needed, the author contends that the Supreme Court of Canada should now take the next step and extend Charter protection to the right to strike.
Forging Responsible Unions: Metal Workers and the Rise of the Labour Injunction in Canada
Labour / Le Travail, 1996
A study of labour history through the prism of the law yields important insights on two of the debates raging within the discipline. The first is on the role of institutions and, in particular, the question of their autonomy and the extent to which the well-being of the labour movement is tied to a supportive state. The second is on the role of discourse and, in particular, legal discourse in setting up categories which delimit the realm of legitimate claims, organize those claims in particular ways, and privilege some claims over others.