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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.
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[E]xamines...some competing accounts of labour law, including ones that rely on Sen's idea of enhancing people's 'capabilities' to live the kinds of lives that they value. [The author] sees a number os trengths with this approach, but also a few important limitations. [Fudge] then goes on to suggest a different basis for conceptualizing labour law: the idea that labour is not a commodity but rather a 'fictive commodity'. The unique problems association with seeling labour create 'regulatory dilemmas' - and the role of labour law is to addrss them. In this context, Fudge uses the 'capabilities' approach but supplements it to argue against the exclusion of unpaid care work from the scope of labour law. --From editors' introduction.
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Considerable evidence points to the diminished significance of ‘labour’ as an industrial and political movement, as a sociological descriptor, and as a distinct field of public policy. This prompts the question: what should labour law be for ‘after labour’? The question is especially timely in the context of what Daniel Rogers has called ‘the intellectual economy of catastrophe’. This Chapter explores three possible responses: that labour law should be viewed as a sub-field of constitutional and human rights law; that it should integrate workers into the structures of capitalism to ensure that they contribute to and benefit from its successes; and that it should maintain its historic function of mobilizing workers to defend their rights and interests, but should also encourage cooperation between workers’ organizations and other social movements. -- From editors' introduction
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Labour law does and must have a theory of justice. Without such a theory labour law has no account of the scope of its application or the point of its normative content. Scope and content are answerable to labour law's idea of justice and a change in our thinking about either entails a necessary rethinking of the other. Because labour law's world is changing labour law will have a new theory of justice. This chapter outlines briefly what such a theory might look like. It also discusses two lines of resistance to this way of thinking. --From editors' introduction
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