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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.
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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.
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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.
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