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My New Academic Papers on Labour Law

One thing I do on this website is promote Canadian academic scholarship in labour and employment law.   You can always find links to many of the best academic papers in the field, from Canadian and foreign academics, on this list of SSRN webpages for labour law scholars I created.

On this theme, I have two new papers just out simultaneously, both dealing with the common theme of how to make the law of work more effective.  A dominant strand in scholarship theses days is the inadequacy of our systems of both collective labour law and individual employment standards law.

Although our legal model recognizes the value of collective bargaining towards creating labourlawand sustaining a middle class, only about 16 percent of private sector workers have access to it.  Income inequality is growing dramatically in Canada, and experts from the World Bank to the OECD agree that declining union representation is a part of the reason for this.  However, rather than promote more collective bargaining, our governments (especially conservative governments, including the B.C. Liberals and the Saskatchewan Party) promote de-unionization.  We know from experience everywhere in the world that reducing collective bargaining increases income inequality. The policy question is where governments should stand on income inequality and the right to collective bargaining.  My papers both take the position that workers who want  collective bargaining should have effective access to it.  That used to be non-controversial, but it is called into question by modern labour law policies.

We have a broad range of employment standards protections, but they are poorly enforced.  Harry Arthurs reported recently that 75% of Federally regulated employers admitted to being in violation of employment standards laws.  Governments lack the will power to invest sufficient funds in enforcement to make the systems enforcement.  The question then becomes, how can employment standards be made more effective in systems that lack the necessary funds to sustain regular, constant inspections.

My two papers discuss very different models for addressing the lack of collective representation in Canada and the poor levels of compliance with employment standards laws.  You can download the papers by following the links below. Here are the abstracts:

A Model of Responsive Workplace Law (2012) 50 Osgoode Hall Law Journal

The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether ‘decentred’ or “new governance” regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but ‘Managerialist.’ Politicians with a Managerialist orientation reject 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 who mistreat their employees. The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a ‘dual regulatory stream’ model that restricts existing rights of employers to resist their employees’ efforts to unionize once they have been found in violation of targeted employment regulation.

Graduated Freedom of Association: Worker Voice Beyond the Wagner Model (2012) Queens Law Journal

The guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms has been held to protect the right of workers to make collective representations to their employers without fear of reprisals, and to require employers to engage in meaningful dialogue about those representations. Wagner-style statutes such as the Ontario Labour Relations Act condition the right to collective bargaining on majority employee support for a trade union. Because that condition is impossible to meet in practice in a great many workplaces, large numbers of employees are left with no effective means of exercising their right of association. In response to growing worker demand for new forms of collective voice, this paper puts forward a modest proposal called Graduated Freedom of Association. Under that proposal, a new “thin” model of freedom of association would serve as an alternative to the “thicker” Wagner model for workers who do not have collective representation under the latter model. The thin model, which would have some parallels to the provisions of the much-criticized Ontario Agricultural Employees Protection Act, would enable all workers to exercise at least the minimum bundle of rights and freedoms protected by the Charter without having to opt for a majority union as bargaining agent. Graduated Freedom of Association would impose few new substantive obligations on employers, but would help to address the large representation gap for employees who want a collective voice at work but cannot realistically acquire it under today’s labour relations statutes.

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