Labour Studies Index

Updated: 2019-04-26

Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging History, Meaning, and Constitutionalization of a Right to Strike

Document type Article
Author Arthurs, Harry
Journal Canadian Labour & Employment Law Journal
Volume 15
Date 2009-2010
Pages 373-388
URL http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1093&context=clpe

Abstract

A self-professed sceptic, the author argues that the recognition of a Charter right of employees to organize, bargain and strike would not likely improve labour's lot in an era of declining union membership and influence. In his view, it is doubtful whether Charter litigation has made much of a difference in Canada's social, economic and political life, which is largely determined not by the formal, juridical constitution but by what he calls the "real constitution" - the unequal distribution of wealth and power in society. Moreover, constitutionalization of collec- tive bargaining rights would probably undermine labour law's auton- omy and its effectiveness by promoting the design of industrial relations systems by judges rather than experts, with dysfunctional results. A reconceptualization of the constitutional significance of "labour" does in fact hold the potential to bring about far-reaching consequences for our approach to labour markets, employment standards legislation, pen- sion laws, and the collective bargaining regime. Howeve, the author says, Charter litigation has little capacity to realize that potential, given itsfocus on the juridical constitution and disconnectedness from the real constitution.