Lecture One (Professor Doorey): Introduction
1. We
introduced the ‘three regimes’ of employment law: common law; employment
regulation; and collective bargaining regulation.
In
this course, we deal with only the Common Law and Employment Regulation (mostly the Employment
Standards Act and the Human Rights Code).
HRM 3420
(Industrial Relations) considers the Collective Bargaining regime.
2. The
Common Law of Employment
This is the body of rules
created over centuries by judges in cases dealing with employment
contracts. They guide the
interpretation of employment contracts. These rules are not written in a ‘statute’. To find the rules, you need to read the
judges’ decisions or employment law books describing the rules. The common law of employment developed
over time as judges read other judges’ decisions from earlier cases, and either
applied the same reasoning to their cases, or ‘distinguished’ earlier cases by
finding that the earlier cases involved different facts, different issues, or
were just wrongly decided.
3. The Common Law is
Historically Tied to the Free Market Model of Employment
If we imagine a world in
which there is no employment regulation (no minimum wage, no
anti-discrimination legislation, etc), how are conditions of work determined?
The answer is through
‘bargaining’ between employers and employees against a backdrop of ‘market
conditions’ -- supply and demand,
‘freedom of contract’. Under
this system, parties are free to agree to whatever they like.
The Er would be expected
to offer conditions sufficient to attract enough workers, but not more than
that, since paying more than necessary cuts into profits. The employer will offer enough to
workers in order to attract the number of workers it needs.
We discussed how in most
cases, employees do not “bargain” at the point of hiring: the employer tells the employee what
the conditions for new hirers are and the employee either accepts or doesn’t. This is because worker usually needs
job more than Er needs any particular worker. In other words, employees usually have
less bargaining power and can’t (or don’t try) to bargain better terms.
As a result, Ers usually
set the terms of employment. This
conclusion was bolstered by a poll of the class: almost every student had accepted
a job without bargaining over conditions of work.
4. Common
Law Judges Saw Their Role as Only Enforcing Contract
Historically, common law
judges saw their role as simply to interpret the contract, not to pass judgment
on whether it was ‘fair” or ‘unfair’.
If employee didn’t like the terms, she could quit or try to bargain
better terms. [In some ways, this
approach has changed, as we will see, as judges today do sometimes interpret
contracts in creative ways to protect employee interests. ]
The combination of: (1)
the market model that permitted the more powerful party (the employer) to
usually set the terms of employment; and (2) the judges’ insistence that their
only job was to enforce those terms, often led to very harsh conditions of
work.
5. Government
Intervenes in “Free’ Labour Market Through Protective Employment Regulation
To address the fact that
the common law model of employment permitted wages that were ‘too low’, or
hours that were ‘too long’, or conditions that were ‘too unsafe’, etc., governments
over time passed legislation, like employment standards, workers’ compensation,
human rights codes, occupational health and safety, etc..
These laws represent an
admission by the state that the common law, free market system of employment
produces outcomes that are inconsistent with public policy objectives.
But what are those public
policy objectives? When should the
state intervene, and is the form of intervention actually achieving the desired
outcomes.
We discussed, for example,
what the objective of a minimum wage is, and then whether we believe it
achieves those objectives.
6. We watched
several short videos.
We watched 3 short videos
of the Virtual Professor Doorey doing interviews.
He declined employment to a woman
because of her red hair, a second applicant declined
his terms and left, and the third simply accepted what was offered and was hired.
We discussed whether “I”
had done anything wrong. Many
students thought denying employment on the basis of hair colour was unfair and
unlawful. We noted that an Er can
hire whomever it likes, unless some statute regulates the decision. We will learn later when we look at
human rights law whether an employer can discriminate on basis of hair colour.
But most people did not
see any problem in my refusal to agree to more money when the second applicant
demanded it. The employer is
permitted to use its superior bargaining power to propose a ‘take it or leave
it’ offer.
In a 4th video
segment, the virtual Doorey fired the employee in order to make room for a
relative to have a job. Since the
employer had included a term in the contract allowing dismissals for any reason
at all, this was not a violation of the employment contract. Many of you thought it was wrong
or ‘unfair’ nonetheless. We will
learn later whether it is unlawful for me to have dismissed her on this basis.
7. We
discussed the Pay Gap Between Men and Women
We noted news stories that
showed how women now work more than men in Canada, but are still lumped in many
of the lowest paid jobs, and still earn 71 cents on the dollar compared to men
(see links on course blog).
We discussed possible
explanations for this persistent gap.
Is it due to sexism and discrimination, to the fact that women ‘chose’
jobs that pay less? Does the fact
that women tend to be primarily responsible for childcare, and therefore are
less able to meet time demands of many high paying jobs, a social problem that the state should
address through regulation?
If so, what sort of
regulation could address that problem?
The point of the discussion was that governments need to ask
whether:
(1) there is a social problem related to
work that needs a legislative response; and
(2) if so, what sort of regulation would
achieve the government’s policy objective
Finally, I noted that as
we work through the materials, we will keep returning to these themes.