Your search

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.

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.

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.

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.

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.

This chapter explores the relationship between the social organization of migrant workers’ unfreedom through the conditionality of legal status and how the creation and deployment of precarious migrant labour regulates national labour markets. It begins by drawing the connections between neoliberal labour regimes, immigration controls, and the exploitation of migrant workers. It shows how precarious migrant status is linked to precarious employment, and how the categories of “foreigner” and “citizen” are used to justify the unfreedom and hyper-exploitation of migrant workers. Focusing on “low-skilled” occupations within the food services sector in which precarious (low-paid and insecure) jobs predominate, this chapter then describes the “low-skilled” (since October 2014 called “low-wage”) stream of the Temporary Foreign Worker Program, its growth, the “public” reaction to foreigners taking Canadian jobs, and the government’s response to this controversy.

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.

Explains in detail the purpose of the book (see publisher's description) and provides a synopsis of the essays contained therein.

Compares the legal regimes of British Columbia and Manitoba for employment agencies that recruit women from the Philippines to work as caregivers in Canadian homes. Concludes that the Manitoba regulatory framework is much more effective in protecting caregivers from the abusive practices of these agencies.

Work on Trial is a collection of studies of eleven major cases and events that have helped to shape the legal landscape of work in Canada. While most of the cases are well-known because of the impact they have had on collective bargaining, individual employment law, or human rights, less is known about the social and political contexts in which the cases arose, the backgrounds and personalities of the judges and the litigants, the legal manoeuvres that were employed, or the ultimate fate of all those who were involved. These studies, written by some of Canada's leading labour and legal historians, provide this context. Beginning with Toronto Electric Commissioners v. Snider, one of the earliest and most important cases involving the division of powers in the Canadian federation, to the events leading to the articulation of the "Rand Formula" in the immediate post Second World War period, and on to the struggles of women workers in the late 20th century in challenging the continu-ing employment practices based on hegemonic gender-based assumptions, each study tells a compelling story, rich in detail and full of perceptive insights into the complex relationship between law and work. -- Publisher's description.

For nearly fifty years, Professor Harry Glasbeek has been at the forefront of legal scholars and public intellectuals challenging assumptions and understandings about the injustices embedded in the economic, social, political and legal orders of Western capitalist democracies. His writings and teachings have influenced generations of law students, academics and activists. [This book] brings together eleven incisive contributions from pre-eminent scholars across several disciplines activated by the same desire for democracy and justice that Glasbeek advances, showing how capitalism shapes the law and how the law protects capitalism. This collection foregrounds a class analysis of the laws responses to corporate killing, workplace violence, surveillance, worker resistance and income inequality, among other issues. --Publisher's description

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.

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. Contents: Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work / Kendra Strauss and Judy Fudge -- Selling Flexibility: Temporary Staffing in a Volatile Economy / Nik Theodore and Jamie Peck -- Power Politics and Precariousness: The Regulation of Temporary Agency Work in the European Union / Michael Wynn -- Placing Filipino Caregivers in Canadian Homes: Regulating Transnational Employment Agencies in British Columbia / Judy Fudge and Daniel Parrott  -- The Creation of Distinctive National Temporary Staffing Markets / Neil M. Coe and Kevin Ward  -- The Persistence of Unfree Labour: The Rise of Temporary Employment Agencies in South Africa and Namibia / Paul Benjamin -- Temporary Work in China: Precarity in an Emerging Labour Market / Feng Xu  -- Unfree Labour and the Regulation of Temporary Agency Work in the UK / Kendra Strauss -- Leased Labour and the Erosion of Workers’ Protection: The Boundaries of the Regulation of Temporary Employment Agencies in Québec / Stéphanie Bernstein and Guylaine Vallée.

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.

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. Introduction: Farm Workers, Collective Bargaining Rights, and the Meaning of Constitutional Protection / Judy Fudge -- Farm Worker Exceptionalism: Past, Present, and the post-Fraser Future / Eric Tucker -- The Roots of Organizing Agriculture Workers in Canada / Wayne Hanley -- Development as Remittances or Development as Freedom? Exploring Canada’s Temporary Migration Programs from a Rights-based Approach / Kerry Preibisch -- Envisioning Equality: Analogous Grounds and Farm Workers’ Experience of Discrimination / Fay Faraday -- Harvest Pilgrims: Migrant Farm Workers in Ontario / Vincenzo Pietropaolo --The Fraser Case: A Wrong Turn in a Fog of Judicial Deference / Paul J.J. Cavalluzzo -- What Fraser Means For Labour Rights in Canada / Steven Barrett and Ethan Poskanzer -- Labour Rights: A Democratic Counterweight to Growing Income Inequality in Canada / Derek Fudge -- The International Constitution / Patrick Macklem -- Giving Life to the ILO: Two Cheers for the SCC / K.D. Ewing and John Hendy.

[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.

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).