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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.
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This chapter compares the historical development and use of criminal law at work in the United Kingdom and in Ontario, Canada. Specifically, it considers the use of the criminal law both in the master and servant regime as an instrument for disciplining the workforce and in factory legislation for protecting workers from unhealthy and unsafe working conditions, including exceedingly long hours work. Master and servant legislation that criminalized servant breaches of contract originated in the United Kingdom where it was widely used in the nineteenth century to discipline industrial workers. These laws were partially replicated in Ontario, where it had shallower roots and was used less aggressively. At the same time as the use of criminal law to enforce master and servant law was contested, legislatures in the United Kingdom and Ontario enacted protective factory acts limiting the length of the working day. However, these factory acts did not treat employer violations crimes; instead, they were treated as lesser ‘regulatory’ offences for which employers were rarely prosecuted.