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In a momentous decision, released on 30 January 2015, the Supreme Court of Canada ruled in Saskatchewan Federation of Labour v Saskatchewan (SFL) that the right to strike is protected by the Canadian Charter of Rights and Freedom's guarantee of freedom of association. Writing for the majority (5:2), Justice Abella asserted: The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada's international obligations … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction. The case is significant not only for the Court's conclusion that the freedom of association protected in section 2(d) of the Canadian Charter includes the right to strike, but also because it signalled that the gradual expansion of the scope of constitutional protection for labour rights that began in 2001 with Dunmore, had not been reversed in 2011 in Fraser. In fact, Justice Abella began her judgment in SFL by remarking that ‘clearly the arc bends increasingly towards workplace justice’. The crucial issue before the Court was the constitutionality of provincial legislation that unilaterally designated public sector workers as essential and prohibited them from striking.... --Introduction (footnotes omitted)
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In 1951, it was obvious to Justice Cornelius O’Halloran, one of the most outspoken members of the British Columbia Court of Appeal (bcca), that picketing was unlawful. According to him, “in a unionized city like Vancouver everybody knows what a picket line means. Many neutral individuals are afraid of patronizing places where labour picketers none too subtly convey by their organized and militant presence and patrol the unspoken threat ‘you better not patronize this place.’” O’Halloran’s statement was made in a judgment that held that two trade unionists who paraded peacefully in front of a restaurant with signs that stated that the restaurant did not have collective agreements with the union were acting illegally. His equation of picketing with coercion was not idiosyncratic. In its first one hundred years, despite several changes in the legal regime governing labour relations in the province and numerous changes in court membership, unions won only eight out of the thirty-eight decisions on the legality of picketing and obtained partial victories in another two. However, the one-sided results obscure the extent of the debate within the bcca, especially in its early years, over whether there was any room at all for lawful picketing as well as over the greater success achieved by unions in cases heard in the post-Charter era. --Introduction
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Using gender as its analytic lens, this article examines segmentation in the Canadian labour market by focusing on the standard employment relationship. It illustrates how standard employment was crafted upon a specific gender division of paid and unpaid labour, the male breadwinner norm, and was only available to a narrow segment of workers. To this end, it traces how from the lOSO's the standard employment relationship was supplemented by a growth in jobs associated with, and filled primarily by, women workers and it shows how women's increasing labour market participation in the late 1960s and early 1970s shaped demands for equality in employment policies. Since the 1980s, a deterioration in the standard employment relationship has undermined both demands for and the basis of gender equality strategies and the article concludes by raising the question of the normative basis for regulating employment in order to move towards strategies for reregulation.