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Drawing on feminist labour law and political economy literature, I argue that it is crucial to interrogate the personal and territorial scope of labour. After discussing the “commodification” of care, global care chains, and body work, I claim that the territorial scope of labour law must be expanded beyond that nation state to include transnational processes. I use the idea of social reproduction both to illustrate and to examine some of the recurring regulatory dilemmas that plague labour markets. I argue that unpaid care and domestic work performed in the household, typically by women, troubles the personal scope of labour law. I use the example of this specific type of personal service relation to illustrate my claim that the jurisdiction of labour law is historical and contingent, rather than conceptual and universal. I conclude by identifying some of the implications of redrawing the territorial and personal scope of labour law in light of feminist understandings of social reproduction.
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The scope of labour rights that are protected by constitutional protections of freedom of association is highly contested and, increasingly, is being litigated before courts. In Canada, the Supreme Court began in 2001 to chip away at jurisprudence that provided a narrow interpretation of freedom of association, and, in 2007, it over-ruled precedent to hold that freedom of association includes collective bargaining. However, this incremental expansion of the freedom of association to include core labour rights came to a halt in the Supreme Court's April 2011 decision Attorney General of Ontario v Fraser. Although a majority of the Court agreed that freedom of association includes collective bargaining, Fraser is remarkable for the extent of disagreement amongst members of the Court over the scope of collective bargaining and how this disagreement has influenced the tone and cogency of the Court's reasoning. This article begins by providing a history of the successive rounds of litigation leading to the Supreme Court's decision in Fraser. This legal context is important because it is barely visible in the majority and concurring judgments, which read as if collective bargaining rights for agricultural workers were a subsidiary concern, and not the issue in dispute. The article then examines the four judgments that make up the Supreme Court of Canada's decision in Fraser, focusing exclusively on the freedom of association arguments. The implications of the Fraser decision for the immediate future of constitutional litigation and labour rights in Canada are discussed in the final section.
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This article reviews the book, "Daunting Enterprise of the Law: Essays in Honour of Harry W. Arthurs," edited by Simon Archer, Daniel Drache and Peer Zumbansen.
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The article reviews and comments on the books, "Contemporary Slavery: Popular Rhetoric and Political Practice," edited by Annie Bunting and Joel Quirk, "Modern Slavery: The Margins of Freedom," by Julia O'Connell Davidson, and "The Poverty of Work: Selling Servant, Slave and Temporary Labor on the Free Market," by David Van Arsdale.
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In Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, [2007] 2 S.C.R. 391, the Supreme Court of Canada overturned precedent and concluded “that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected” (at para. 22). The author explores the Supreme Court of Canada’s change of heart and what this change implies, not only for constitutional doctrine, but also for what the Court understands about the governance of the postFordist world of work. She situates the Court’s reasoning in a few key cases dealing with labour’s distinctive rights – to bargain collectively and to strike – in the social context that both shapes the legal discourse about labour rights and influences organized labour’s power. She considers the paradox of the Supreme Court’s embrace of Fordist labour rights in a post-Fordist economy, and suggests a modest, though important, role that the Court could play in fostering social justice in the brave new world of work.
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Disputes over the meaning of human trafficking, forced labour and modern slavery have both provoked and coincided with a reinvigorated debate in academic and policy literatures about how to conceptualise unfree labour. This article traces the contours of the debate over free and unfree labour, identifying its key stakes as the debate has developed and paying particular attention to recent interventions. It begins by identifying a problem common to both canonical liberal and Marxian approaches to the free/unfree labour distinction, which is to fetishise the labour market. It then discusses the consensus that is emerging across disciplines and in leading international organisations that labour unfreedom in contemporary capitalism is best conceptualised as a continuum rather than a binary, highlighting recent disciplinary-specific contributions. It argues that the metaphor of a continuum of labour unfreedom obscures more than it illuminates. Drawing upon the growing body of literature that advocates a multifaceted approach to labour unfreedom, this article argues that a robust concept of local labour control regime does a much better job of capturing the complex mix of consent and coercion involved in extracting value from labour power than the idea of a continuum of labour unfreedom.
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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.