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... Occupational health and safety regulation sits atop these structures of risk creation and distribution and historically has been shaped by the struggles of working people to limit the harm that unbridled capitalism would have otherwise inflicted upon them. The results, which are the subject of this chapter, have varied over time and place, and have secured real improvements for some workers. Given space limitations, the remainder of this chapter focuses on OHS regulation in advanced capitalist countries, with a concentration on the English-speaking world. The next section outlines the broad lines of the historical development of OHS regulation, beginning from the rise of industrial capitalism in the early nineteenth century through to the last decades of the twentieth century and the creation of a new mode of regulation, variously called regulated selfregulation or mandated partial self-regulation. The following section considers various debates over the performance of that regime, including the relation between self-regulation and state enforcement, the practice of state enforcement and the efficacy of worker participation rights. Finally, the last section of the chapter examines emerging OHS challenges to the regulatory regime. --From introduction

For Ontario workers during the industrial revolution the workplace was often an environment of terrible danger. Injuries and illness from unsafe working conditions were commonplace. Over time these conditions spurred efforts for reform from activists, legislators, and the courts. But change was slow in coming. To understand the impact of industrial revolution on the health and safety of workers generally, and on women and children in particular, tucker uses their testimony before various commissions, newspapers, and reported court cases. Initial efforts to effect change were made through the courts; they were largely unsuccessful. When the judiciary refused to regulate the risk-creating conduct of employers, through either the civil or the criminal law, workers and Victorian reformers found common ground in successfully promoting factory legislation. By prescribing and enforcing minimum standards, a measure of regulatory responsibility for the health of workers generally and women and children in particular was shifted from the market to the state. Class interest and gender ideology played a substantial role in this process. But the legislation's implementation belied its promise. The government was unwilling to provide adequate enforcement resources and inspectors accepted the conventional wisdom that workers had to adjust to the 'normal' hazards of industry, which were reasonable and, therefore, legal. Even when the accident rate began to soar as a result of the 'second industrial revolution, ' the authorities remained complacent. Tucker says that in industrial capitalist social formation, the nature and degree of hazards to which workers are exposed are determined largely by the employer-worker balance of power. Their respective power resources both shape and are shaped by the ideological, legal, political, and administrative environment in which they are deployed. Throughout the last half of the nineteenth century and up to the First World War, state regulation of occupational health and safety was substantially subordinated to market-driven forces; it still is today

In Canada, as in most advanced capitalist countries, the right of workers to engage in collective action has been partially immunized from competition law, one of the basic norms of capitalist legality. The “zone of toleration”, however, has been contested over time and poses a recurring regulatory dilemma that stems from labour’s commodity status in capitalism. In the capitalist utopia, workers are commodified and atomized, each one competing against all others. But in capitalist reality, such an arrangement produces the tragedy of atomism. In Polanyian terms, labour is a false commodity and treating it as such results socially dysfunctional consequences, producing a counter movement. In Marxist terms, labour is embodied in human beings who resist their commodification and atomization, in part by uniting with other workers and acting collectively to improve their conditions and, perhaps, one day to create a different social order in which labour ceases to be a commodity. Viewed in either light, the zone of legal toleration within competition law is the product of recurring conflicts and struggles whose outcome is shaped and reshaped over time. In Canada, this conflict has been resolved by granting workers a legal immunity from liability under competition law for engaging in approved collective action to improve or defend their terms and conditions of work. However, the zone of toleration is contestable at three margins, explored in this chapter. First, is the margin between those workers who are covered by the exemption and those who are not; second is between the sale of labour power and the sale of the commodities it produces; and the third is between the means that covered workers can lawfully use to make their combinations effective and those that take them out of the zone of toleration. The chapter explores the history of the construction of the zone of toleration and conflicts over its margins.

This article is part of a larger study of Canadian labor law before the advent of statutory collective bargaining, which questions the traditional periodization and the meanings of the categories. It is often an un-articulated premise that the exercise by employers of their superior economic power, as imparted and structured through the law of property and contract, is not coercion. Rather, the analysis is restricted to direct state coercion, exercised through the criminal law, the police, and the injunction. This framework produces a partial view of the role of law and interferes with an analysis of the strategic choices made by workers and employers. By bringing 'normal' market relations back in, we can more fully examine the nuances of coercion and consent at a given time.

Causation analysis is densely political in at least three ways. First, because causation is crucial to our system of attributing moral, legal, and political responsibility, causation arguments are advanced for purely instrumental purposes. They do political work. Second, because any particular occurrence is the outcome of an almost infinite number of antecedent events, “but for” causation analysis produces trivial results. A judgment about causal significance is required and will depend, in part, on the goals of the analysis. The choice of goals is political, but unstated goals and hidden assumptions often exclude consideration of some possible causes as significant. Theses politics of causation need to be made explicit. Third, the institutional setting in which official determinations of causation are made influence the outcome. Hence, it is necessary to explore these as well. Each of these three dimensions of the politics of causation is explored through an analysis of the 1992 Westray Mine disaster which killed 29 miners in Nova Scotia, and the official responses to it. It is argued that if the goal is to protect workers and nothing else, the political-economic context that promotes the creation of hazardous conditions must be considered a significant cause of harmful occurrences. It is unlikely, however that any of the official responses to the disaster will take this approach.

Discusses "The Westray Story" (Report of the Westray Mine Public Inquiry, Justice K. Peter Richard, Commissioner, 1997) that made scathing findings regarding the operation of the short-lived mine and the government's failure to regulate it properly.

Debates over worker subordination are central to discussions of the efficacy of protective labour and employment law whose central mission in a capitalist political economy, after all, is to reduce but not eliminate subordination. When protective labour and employment law seems to be fulfilling its mission discussions of worker subordination seem to ebb, but the topic becomes more urgent as the efficacy of the law declines. Not surprisingly, as labour law’s efficacy has been declining over the past several decades, we are in the midst of a revival of debates over worker subordination, the premise of this special issue. While many seek to revive the classic mission of labour and employment law, ameliorating the worst excesses of subordination, while leaving in place labour’s structural dependency on capital, the goal of this article is to revisit and elaborate a marxist political economy perspective to demonstrate that workers’ structural subordination to capital is deepening and that this limits the possibility of achieving much of the reformist agenda. While there are no easy ways of overcoming that structural subordination, a progressive reform agenda must centre that subordination and think about how labour laws might contribute to a transformative project. --Introduction

The rise of rentier capitalism in advanced capitalist countries has detrimentally affected large numbers of worker and impaired the efficacy of protective labour and employment laws. However, capitalist rent-seeking is not unique to rentier capitalism, but rather has taken a variety of forms over time. This chapter begins by exploring the evolving meaning of rent and changing practices of capitalist rent-seeking. It then considers the ways in which workers responded to those practices in both rent-rich and rent-poor sectors of the economy, including through the enactment of labour and employment laws appropriate to, but only partially successful in addressing labour exploitation in each sector. The chapter then considers the impact of rentier capitalism on work in productivist firms and the efficacy of existing protective labour and employment laws. It concludes by considering possible reforms to protective laws for rentier capitalism while recognizing their limits in worlds built on structures generative of labour exploitation.

A response from the authors of the book that was reviewed entitled "Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case" is presented. They all shared a commitment to the goal of promoting labour rights for agricultural workers and a belief that constitutional litigation could be a tool through which that objective was advanced. They want the implication of this formulation to be clear: they do not believe that constitutional rights and constitutional litigation were ever or are now the only or even the best means for advancing the struggle for labour rights for farm workers. However, the reality is that laws actively prescribe and sustain a particular balance of power. Laws actively construct relationships of domination/subordination and constrain the space for particular kinds of collective workplace action.

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.

At the turn of the century, the legislative, administrative, and judicial branches of the Canadian state responded to the labour conflicts associated with the second industrial revolution by simultaneously expanding both their coercive and their facilitative roles. This paper examines one aspect of this development, the rise of the labour injunction, through a study of a series of strikes conducted chiefly by metal workers in south central Ontario between 1900 and 1914. In addition to retrieving the largely forgotten genealogy of a body of law that continues to play an important role in regulating and containing trade union activity, the study contributes insights into debates raging among labour historians regarding the role and significance of state institutions and public discourse in determining the trajectory and fate of organized labour.

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. Contents: Introduction / Judy Fudge and Eric Tucker -- pt 1. Constitutions and institutions. "Capitalist ’justice’ as peddled by the ’noble lords’": Toronto Electric Commissioners v. Snider et al. / R. Blake Brown and Jennifer J. Llewellyn -- John East Iron Works v. Saskatchewan Labour Relations Board: a test for the infant administrative state / Beth Bilson -- pt. 2. Responsible unions: security, orderly production, and dissent. How Justice Rand devised his famous formula / William Kaplan -- Dissent, democracy, and discipline: the case of Kuzych v. White et al. / Mark Leier -- Organizing offshore: labour relations, industrial pluralism, and order in the Newfoundland and Labrador oil industry, 1997-2006 / Sean T. Cadigan -- pt. 3. Courts and collective action in the post-war regime. The Royal York Hotel case: the "right" to strike--and not be fired for striking / Malcolm E. Davidson -- Hersees of Woodstock Ltd. v. Goldstein: how a small town case made it big / Eric Tucker -- A certain "malaise": Harrison v. Carswell, shopping centre picketing, and the limits of the post-war settlement / Philip Girard and Jim Phillips -- pt. 4. Human rights norms at work. Debating maternity rights: Pacific Western Airlines and flight attendants’ struggle to "fly pregnant" in the 1970s / Joan Sangster -- Challenging norms and creating precedents: the tale of a woman firefighter in the forests of British Columbia / Judy Fudge and Hester Lessard -- pt. 5. Changing common law norms. The micropolitics of Wallace v. United Grain Growers Ltd. / Daphne G. Taras -- Afterword: looking back / Harry Glasbeek.

In this study of the relations between workers and the state, Judy Fudge and Eric Tucker examine the legal regulation of workers' collective action from 1900 to 1948. They analyze the strikes, violent confrontations, lockouts, union organizing drives, legislative initiatives, and major judicial decisions that transformed the labour relations regime of liberal voluntarism, which prevailed in the later part of the nineteenth century, into industrial voluntarism, whose centrepiece was Mackenzie King's Industrial Disputes Investigation Act of 1907. This period was marked by coercion and compromise, as workers organized and fought to extend their rights against the profit-oriented owners of capital, while the state struggled to define a labour regime that contained industrial conflict. The authors then trace the conflicts that eventually produced the industrial pluralism that Canadians have known in more recent years." "The book is simultaneously & history of law, aspects of the state, trade unions and labouring people, and their interaction within the broad and shifting terrain of political economy. The authors are attentive to regional differences and sectoral divergences, and they attempt to address the fragmentation of class experience. -- Publisher's description. Contents: Introduction. Part 1: The Emergence of Industrial Voluntarism. Courts and Conciliation: The Norms of Responsible Unionism, 1900-1906 -- Accommodation and Coercion: The Rise of Industrial Voluntarism, 1907-1914 -- Industrial Voluntarism Suspended, 1914-1918 -- The Post-War Confrontation and the Restoration of Industrial Voluntarism, 1919-1925 --Industrial Voluntarism in a Prosperous Interregnum, 1925-1929. Part 2: Towards a New Regime of Industrial Legality. Industrial Voluntarism in Distress: The Early Depression Years, 1929-1935 -- Canada's New Deals for Labour, 1936-1939 -- The Exhaustion of Industrial Voluntarism, 1939-1942 -- Recognition and Responsibility: The Achievement of Industrial Pluralism, 1943-1948 -- The Hegemony of Industrial Pluralism --Notes (pages 316-381) -- Index.

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. Contents: Law with class / Eric Tucker and Judy Fudge -- Speaking the truth against power / Julian Sempill --  High-end inequality / Neil Brooks -- The changing workplace revisited / Keith Ewing --  Regulating to prevent workplace violence / Katherine Lippel -- Corporate killing personified / Steven Bittle, Steve Tombs and David Whyte --  Tightening the screws on the 99% / Laureen Snider --  Labour and law in industrialization / Douglas Hay -- The First Smith Act trial and the rule of law / Bryan Palmer --  Cultural heritage, the right to the city, and the Marxist critique of law / Christine Sypnowich -- Afterword / Ron McCallum –- References – Index -- Appendix: Principal works of Harry Glasbeek.

This study examines worker voice in the development and implementation of safety plans or protocols for covid-19 prevention among hospital workers, long-term care workers, and education workers in the Canadian province of Ontario. Although Ontario occupational health and safety law and official public health policy appear to recognize the need for active consultation with workers and labour unions, there were limited – and in some cases no – efforts by employers to meaningfully involve workers, worker representatives (reps), or union officials in assessing covid-19 risks and planning protection and prevention measures. The political and legal efforts of workers and unions to assert their right to participate and the outcomes of those efforts are also documented through archival evidence and interviews with worker reps and union officials. The article concludes with an assessment of weaknesses in the government promotion and protection of worker health and safety rights and calls for greater labour attention to the critical importance of worker health and safety representation.

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.

J.S. Woodsworth was a prominent Canadian socialist who was a member of the Canadian Parliament from 1921 to 1942 and a founder of the Co-operative Commonwealth Federation (CCF), the predecessor of the present New Democratic Party (NDP). This paper uses a Gramscian framework to explore his promotion of labour rights in the inter-war years, which I argue was an interregnum, a period when the hegemony of the old order was weakened. In this period, counter-hegemonic projects were launched to challenge the old order but, at the same time, so too were liberal passive revolutionary projects that aimed to restore the hegemony of capitalist relation by accommodating some of the demands of disgruntled workers, as well as coercive ones to restore order by force. J.S. Woodsworth strenuously fought against rising coercion and attempted to pursue a politics of amelioration in the hopes it would eventually lead toward socialism, but in the end it was the liberal counter-hegemonic project that was successful. I then examine the Woodsworth legacy for our time, a moment that I argue is also an interregnum, when the hegemony of the post-war order has been weakened, but because subordinated classes are weak, a counter-hegemonic project is not in the offing. Instead, we are witnessing an increase in coercion, on the one hand, and a weak politics of amelioration on the other.

[The author] critically examines the rationale offered to justify the exclusion of agricultural workers from occupational health and safety legislation [in Ontario] which lasted until 2005. The chapter is a case study of marginalized workers denied the benefit of labour law protections. --From editor's introductory chapter, p. 38.

The paper will proceed as follows. It tells the Westray story in two parts, first, the decision to set up the mine and, second, the operation of the mine. These events illuminate the salience of the broader political economic context to an understanding of what happened. Further, the story gives the lie to the assumptions which underpin health and safety regulation. Next, the paper details the implications of the political economy and the prevailing ideology for the enforcement of health and safety regulation. The paper then critically examines a component of, or prop for, the consensus theory which postulates that workers and capitalists share, in some roughly comparable way, the risks of production. In part this is done by examining the proposition that the corporate form is a neutral, facilitating device.