I have posted the essay version of the Sefton-Williams Memorial Lecture I presented at the University of Toronto in November 2023 for fellow labour law and labour relations nerds. The title of the lecture was Can’t Get There From Here: Thoughts on the Idea of Labour Law Reform in the 21st Century.
The lecture examines what a model of collective bargaining law in the post-Wagner model era might look like and debates how fundamental reform like that might occur in these politically polarized times. The Wagner model of collective bargaining law that has governed in Canada since the 1940s today extends collective bargaining to just 15% of private sector workers, down from nearly 34% in the 1960s. Tweaking that model won’t turnaround the fortunes of collective bargaining. The most important question for 21st century labour law policy is how to move beyond the Wagner model so that those workers who could most benefit from collective bargaining and collective voice have a chance of accessing it. They don’t now.
However, the Wagner model, despite its obvious shortcomings, retains such a powerful normative grip on the hearts and minds of the labour relations community that is seems impossible to imagine any any other model. As a result, it is difficult to begin a serious discussion about what 21st century labour law should look like.
My discussions about the future of labour law engage what I call a three-level framework with the Wagner model’s emphasis on decentralized majority/exclusive trade unionism in the middle. Debates about reforming the Wagner model have continued for nearly 50 years, yet throughout this entire period, private sector collective bargaining coverage has been in steady decline. I’m not very interested anymore in debates about reforming the Wagner model. The Wagner model will continue to exist and be irrelevant to the vast majority of Canadians for years to come.
The interesting questions in labour law are how to build upon the Wagner model to create a much thicker model of freedom of association that does not depend entirely on workers joining majority trade unions in single unit workplaces.
Therefore, we need to developed a model of graduated freedom of association that I have been talking about for nearly 15 years now (see here and here, for example). This approach requires us to think about reforms that descend from the Wagner model of majoritarianism to protect a free-standing “right to associate” and “act collectively” alongside other workers. This will include examining a right to strike for non-unionized workers as well as other forms of non-majority collective voice in workplaces where no single union represents a majority of employees.
Next, the future of labour law needs to wrestle seriously with models that ascend from the decentralized Wagner model towards broader-based bargaining/sectoral bargaining. However, proposals for broader-based bargaining designed to extend the reach of collective bargaining will be fiercely resisted by the business lobby. This poses a substantial obstacles for moving beyond the Wagner Model in the 21st century.
Here is the abstract of the Sefton essay.
Private sector collective bargaining coverage in Canada has halved over the past 60 years, from a high of near 34% in 1961 to just 15% today. Collective bargaining under the Canadian Wagner model that has governed since the 1940s is entirely out of reach for Canada’s most vulnerable workers. The age of the Wagner model is past. And yet, that model holds such a normative grip on Canadian labour law psyche that governments and the labour relations community alike struggle to imagine what comes next. Should we move on, and if so how? Every century develops its own labour laws and a quarter way into the 21st century, we remain tied to a World War II era legal relic.
Recognizing this reality is the easy part. Deciding where to go next is the central labour policy question of our time. In this essay, the author argues that labour law reform is greatly needed as a counter to rising political extremism and inequality, examines what labour law ‘after the Wagner model’ might look like, and finally, how fundamental legal change might occur in a period of deep political division and employer aversion to any type of collective bargaining. This essay was presented as a Sefton-Williams Memorial Lecture in Labour Law and Labour Relations at the University of Toronto in 2023.