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The right to strike is a key feature of freedom of association and effective collective bargaining. We consider how the legal regulation of strikes and boycotts affects the power resources available to workers and unions to improve working conditions and workers’ voice in firms, such as global supply chains and platform giants, that utilize network-of-contracts business models. We begin by bringing the literatures on power resources theory and supply chain and platform capitalism into conversation. Treating law as a form of institutional power influencing workers’ ability to exercise other power resources in network-of-contracts business models, we then examine how the laws regulating strikes influence workers’ ability to mobilize their other power resources to affect the terms and conditions of work. We investigate the Make Amazon Pay campaign and related strikes to gauge how the legal regulation of strikes affects workers’ power to disrupt supply and production under network-of-contracts business models. We conclude by highlighting the need to revise the law of strikes to fit the power relations under supply and platform capitalism.

In 1947. Bora Laskin, the doyen of Canadian collective bargaining law, remarked that "Labour relations as a matter for legal study … has outgrown any confinement to a section of the law of torts or to a corner of the criminal law. Similarly, and from another standpoint, it has burst the narrow bounds of master and servant." That standpoint was liberal pluralism, which comprises collective bargaining legislation administered by independent labour boards and a System of grievance arbitration to enforce collective agreements. After World War II, it came to dominate our understanding of labour relations law such that, according to Laskin, reference to "pre-collective bargaining standards is an attempt to re-enter a world that has ceased to exist." But this picture is only partially true. Instead of replacing earlier regimes of industrial legality, industrial pluralism was grafted on to them. Moreover, it only encompassed a narrow, albeit crucial, segment of workers; in the mid-1950s "the typical union member was a relatively settled, semi-skilled male worker within a large industrial corporation." More than 65 per cent of Canadian workers at that time, a large proportion of whom were women and recent immigrants, fell outside the regime. This paper broadens the focus from collective bargaining law to include other forms of the legal regulation of employment relations, such as the common law, minimum standards, and equity legislation. In doing so, it examines the extent to which liberal pluralism regime was implicated in constructing and reinforcing a deeply segmented labour market in Canada. It also probes whether the recent assault on trade union rights may be the trajectory for the reconstruction of a new regime of employment relations.

This paper looks at the “deep roots” of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms — to associate, to bargain collectively, and to strike — the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of their review of those regimes, the authors argue that long before the modern scheme, workers enjoyed a virtually unlimited freedom to strike for collective bargaining purposes. Although government-imposed restrictions on the freedom have increased significantly, especially under industrial pluralism, legislatures have typically provided workers with compensating trade-offs, including rights enforceable against their employers. However, in contrast to the historical pattern, public-sector workers have with growing frequency been subjected to “exceptionalism,” i.e. the suspension or limitation of freedoms without a grant of compensatory rights. In the authors’ view, it is the imposition of such measures that will likely provide the context for consideration of whether the Canadian Charter of Rights and Freedoms protects the right to strike.

Analyzes Supreme Court of Canada's decisions of the 1980s and 1990s that collective bargaining is a not a fundamental right under the Charter of Rights and Freedoms.

Unfree labor has not disappeared from advanced capitalist economies. In this sense the debates among and between Marxist and orthodox economic historians about the incompatibility of capitalism and unfree labor are moot: the International Labour Organisation has identified forced, coerced, and unfree labor as a contemporary issue of global concern. Previously hidden forms of unfree labor have emerged in parallel with several other well-documented trends affecting labor conditions, rights, and modes of regulation. These evolving types of unfree labor include the increasing normalization of contingent work (and, by extension, the undermining of the standard contract of employment), and an increase in labor intermediation. The normative, political, and numerical rise of temporary employment agencies in many countries in the last three decades is indicative of these trends. It is in the context of this rapidly changing landscape that this book consolidates and expands on research designed to understand new institutions for work in the global era. This edited collection provides a theoretical and empirical exploration of the links between unfree labor, intermediation, and modes of regulation, with particular focus on the evolving institutional forms and political-economic contexts that have been implicated in, and shaped by, the ascendency of temp agencies. What is distinctive about this collection is this bi-focal lens: it makes a substantial theoretical contribution by linking disparate literatures on, and debates about, the co-evolution of contingent work and unfree labor, new forms of labor intermediation, and different regulatory approaches; but it further lays the foundation for this theory in a series of empirically rich and geographically diverse case studies. This integrative approach is grounded in a cross-national comparative framework, using this approach as the basis for assessing how, and to what extent, temporary agency work can be considered unfree wage labor. --Publisher's description

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)

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.

Examines the Supreme Court's decision on Fraser in the context of the broader political battle on labour rights. The author links the decline in union density to increasing inequality in income and taxation. Canada's failure to ratify or comply with international conventions of labour rights is also analyzed.

[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.

On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. The case involved a constitutional challenge to an Ontario statute on the grounds that it violated agricultural workers’ freedom of association and right to equality by excluding them from the statutory protection that is available to virtually all other private sector workers and by failing to provide them with alternative legislative support for meaningful and effective collective bargaining rights. Although the Court upheld the constitutionality of the legislation by an eight to one majority, it provided four different, and incommensurable, sets of reasons. For the union that instigated the litigation, Fraser is a defeat. For the labour movement and their advocates, Fraser is ambiguous. What is clear, however, is that the Supreme Court of Canada was badly divided over the scope of protection that freedom of association provides to the right to bargain collectively. This collection of original essays untangles the two stories that are intertwined in the Fraser decision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications. --Publisher's description

Compares the case law on Fraser and Dunsmore and critiques the Supreme Court's failure in Fraser to address the functional nature of the discrimination against farm workers as an issue of equality rights under Section 15 of the Charter of Rights and Freedoms,

[Provides] a critical examination of Canada's Temporary Migration Programs for agriculture. I show how migrants are positioned to be relatively more vulnerable than other workers within the country's food agricultural system owing to their position at the bottom of the occupational hierarchy, their precarious immigration status as temporary "foreign" workers, and their racialization as non-Whites from the global South. Moreover, I illustrate how changes to policies of temporary migration have constituted farm work as an even more precarious form of employment for migrants in particular, but also Canadians.... Finally, while recognizing that TMPs may contribute to aspects fo economic development, enabling participants to access income and assets formerly out of their reach, I call for greater attention to the rights, welfare, and dignity of migrants when considering temporary migrations programs.

Annotated photographs of migrant farmers in Ontario from 1984 to 2009, drawn from the author's book, "Harvest Pilgrim's" (Between the Lines, 2009).

Analyzes the Supreme Court's jurisprudence on freedom of association, notably B.C. Health Services (2007), in respect to Canada's constitutional relationship with international law.

Describes the efforts of agricultural workers to obtain legal protection with particular reference to legislation and proceedings in Ontario. Concludes that despite legal setbacks, the struggle continues through the Agriculture Worker Alliance of the United Food and Commercial Workers.

Considers the current regulatory environment for temporary employment workers in Quebec. Concludes that the legislative failure to regulate has resulted in abusive practices that undermine labour law.

Over a million self-employed Canadians work every day but many of them are not entitled to the basic labour protections and rights such as minimum wages, maternity and parental leaves and benefits, pay equity, a safe and healthy working environment, and access to collective bargaining. The authors of "Self-Employed Workers Organize" offer a multi-disciplinary examination of the legal, political, and social realities that both limit collective action by self-employed workers and create huge impediments for unions attempting to organize them. Through case studies of newspaper carriers, rural route mail couriers, personal care workers, and freelance editors - four groups who have led pioneering efforts to organize - the authors provide a window into the ways political and economic conditions interact with class, ethnicity, and gender to shape the meaning and strategies of working men and women and show how these strategies have changed over time. They argue that the experiences of these workers demonstrate a pressing need to expand collective bargaining rights to include them. --Publisher's description

The author, who was the farm workers' legal representative before the Supreme Court in the Fraser case, provides historical background and analyzes the court's decision, including its reliance on judicial deference to the legislature. Concludes that the court was preoccupied with the larger political battle rather than the constitutional merits of the case.

An analysis of the impact of the Supreme Court of Canada decision in Fraser on protection of freedom of association in the collective bargaining context in Canada, with particular emphasis on the different approaches taken by the Court, including the dissenting reasons of Justice Rothstein, and what those reasons reveal about the Court's disagreement over the scope of freedom of association in the collective bargaining context.

Considers the intersection of relevant conventions of the International Labour Organization, the Charter of Rights and Freedoms, and labour case law of the Supreme Court of Canada. Asserts that the Canadian government is bound by ILO membership to promote collective bargaining, and that the Supreme Court's reliance on ILO principles was fully justified in Dunmore and BC Health Services. Concludes that, although the court's decision on Fraser fails to implement these principles, the right to strike in Canada will eventually be constitutionally recognized.