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This article reviews three books: "Reconcilable Differences," by Paul Weiler, "Grievance Arbitration of Discharge Cases," by George W. Adams, and "Labour Law and Industrial Relations in Canada," by H.W. Arthurs, D.D. Carter, and H..J. Glasbeek.

Judges in Canada now adhere to the view that it is their task to draft labour codes for Canadians - a position recently and fully embraced by the Ontario Court of Appeal in Fraser v. Ontario (Attorney General).' Some commentators believe this is a sound legal development. Others are equivocal. I think it is a very serious mistake. Given the alternatives, it is a strange and undesirable turn of legal events. But the strangeness does not end with the mere fact that we now live with what I call a "judicial labour code" (JLC). There is more. Judges undertaking this exercise, enthusiastically but nonetheless disconcertingly, insist that their nascent labour code happens to contain most of the provisions inserted over the years by Canadian legis- lators in an overtly political effort to "balance" or (in Paul Weiler's term) to "reconcile" the interests of labour and capital. Those provisions relate, for example, to the duty to bargain, to unfair labour. --Introduction

On December 5, 2009, an international symposium took place at the Faculty of Law, University of Toronto, on the question, "Is there a constitutional right to strike in Canada?" In organizing that meeting, I invited leading labour and constitutional law scholars, practitioners and judges from Europe, South Africa, Israel, the United States and the United Kingdom, as well as from across Canada, to attend in order to help answer the most pressing issue facing students and practitioners of Canadian labour law today.

This paper looks into how a "strike" should be defined under Canadian law. Although labour boards and courts in Canada claim to apply an "objective" definition, whereby a "strike" means any con- certed cessation of work, the author argues that this approach is incap- able of providing a coherent answer to the question of which work stoppages are strikes and which are not. What is needed, rather, and what accurately reflects the understanding of "strike" embodied in labour relations statutes and cases decided at common law, is a subjec- tive definition that is based on the reason for the work stoppage. Thus, in the author's view, a strike is a timely (and hence legal) cessation of work if it is engaged in by a group of workers who are negotiating (or renego- tiating) their agreement with an employer, in an effort to induce the employer to come to terms. The author warns, however, that any attempt to constitutionalize the right to strike through the Charter freedom of association in s. 2(d), rather than through the guarantee of equality in s. 15, will inevitably draw courts into the mistaken exercise of trying to create a 'judicial labour code."

The project of re-thinking Canadian labour policy within a human capital policy is best understood as the domestic equivalent of the international effort to reconceive the nature of development as requiring the integration of the economic and the social. Changes in modes of productive relations in the "new economy" require not just a complex reassessment of the best ways to achieve the goals of various labour policies but, more radically, involve a challenge to the conceptual basis of labour law. This both requires and provides the opportunity for a reconceptualization of the appropriate "platform" for delivering labour law and a new paradigm for understanding labour law itself.

In its ruling in B.C. Health Services, the Supreme Court of Canada relied on Canada's obligations under international law, and specifically ILO law, to hold that s. 2(d) of the Charter of Rights and Freedoms on freedom of association not only protects the right of unions to engage in collective bargaining, but also imposes on employers a duty to bargain. The author is critical of the Court's reasoning in advancing the latter proposition, particularly because Canada has not ratified the ILO convention on collective bargaining and therefore is not bound by its provisions. Moreover, he points out, the central tenet of that convention is that ratifying states are required to encourage voluntary - not compulsory - negotiations between employers and workers. The author goes on to note that Canada, in virtue of its membership in the ILO, is covered by that body's 1998 Declaration, which identifies freedom of association as a "core labour right," and also can be the subject of a complaint before the Committee on Freedom of Association (CFA). However, he explains, neither the Declaration nor the CFA procedure results in conventions being binding on non-ratifying states. Furthermore, the Declaration's purpose is merely to "promote" key principles, such as freedom of association; while the CFA is not a judicial body, and its decisions are considered neither binding nor authoritative. In the result, the Supreme Court, partly as a consequence of its misreading of Canada's international law obligations, has constitutionalized a particular model of labour relations - one that is peculiar to North America, even though that model is only one of many ways in which the international law norm of freedom of association can be instantiated and made enforceable. Ultimately, the author concludes, the problem with B.C. Health Services, as with earlier decisions, lies in the Court's refusal to apply the Charter guarantee of equality under s. 15, thus forcing s. 2(d) to do a job for which it is not suited.

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

[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.

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