The Freedom of Association: The Emerging Right to Strike Consensus in International and Domestic Labour Law (original) (raw)
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Canadian Labour Employment Law Journal, 2010
bodies responsible for assessing state compliance with "freedom of association" have established an extensive jurisprudence on the right to strike. This jurisprudence is based on their interpretation of the ILO Constitution and various key ILO conventions concerning the right to organize and collective bargaining, in both the private and the public sector. Since the end of the Cold War, the employer lobby within the ILO has increasingly tried to undermine this aspect of ILO jurisprudence, so as to deny that there is any necessary link between freedom of association and the right to take industrial action. This pressure has come at a time when ILO norms are beginning to receive greater attention and respect, and are being applied in the human rights jurisprudence of other legal systems, including those of Canada and Europe. In 2007, the European Court of Justice for the first time explicitly recognized a right to strike, referring to ILO Convention 87 as a source of this entitlement, but limited it by imposing a proportionality requirement on its exercise. In 2009, the European Court of Human Rights indicated for the first time that the right to strike was implicit in Article 11 of the European Convention on Human Rights, again in reliance on ILO standards. This paper compares and contrasts those cases, investigating the extent to which European recognition of a right to strike can serve to reinforce or undermine ILO standards. The paper also considers the more general implications of these developments for Canadian human rights jurisprudence.
Freedom of Association, Freedom of Contract, and the Right-to-Work Debate
Employee Responsibilities and Rights Journal, 2006
The debate over union security arrangements is often presented as involving irreconcilable goals and values. Supporters of union security typically stress their importance to the union's organizational strength and workers' welfare. Right-to-work supporters, who favor banning such arrangements, typically emphasize employee freedom and choice. Our approach involves a unique comparison of both perspectives, which shows that neither perspective is completely compatible with safeguarding freedom. We therefore advocate reconciliation based on compulsory worker representation, which preserves the best freedom-enhancing properties of each perspective.
Freedom of association in modern industrial relations
Industrial Relations Journal, 1984
Here the author attempts to analyse freedom of association by highlighting three phenomenatrade union independence, recognition and the closed shopand asks what protection of the freedom requires in each context.
The Freedom of Association Mess: How We Got into It and How We Can Get out of It
McGill Law Journal, 2009
Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.
Int. J. Human Rights and Constitutional Studies, 2021
The freedom of association and collective bargaining are documented human rights as well as labour rights. Evidently, violation of one affects the other as they are interconnected. So if the right to freedom of association and collective bargaining are denied to a worker, it simultaneously violates provisions of human rights. Although these rights are parallel, regrettably a division between them still exists. The primary aim of labour rights is to ensure proper treatment of workers at the workplace. This approach loses value when it is yet to be determined whether it is equivalent to human rights or not. This research takes a twofold approach towards proving that labour rights and human rights are in fact the same and should not be separated. Also it aims to show how violation of right to freedom of association and collective bargaining is also violating both labour and human rights.
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.
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...
Freedom of Association as a Core Labor Right and the ILO: Toward a Normative Framework
Law & Ethics of Human Rights, 2009
Freedom of association operates as an organizational "meta-norm," appreciated both as an independent value and as a touchstone for the institutional design of the International Labour Organization (ILO). Despite the renewed interest of the ILO in various aspects of the norm, its understanding of freedom of association lacks a comprehensive normative framework. This article presents such a conceptual framework and a critical in-depth analysis of current ILO freedom of association jurisprudence. Freedom of association should be understood in terms of equitable dialogue (ED), a term offered and developed herein, as an understanding that is already partly embedded in ILO jurisprudence.