Osgoode LLM: Perspectives and Issues in Work Law

I promised that I would pass along some leading writings that advocate against unions, collective bargaining, and strong employment law protections.  Here are some that I quickly through together:

Richard Posner

Some Economics of Labor Law

Economic Analysis of Sex Discrimination Laws

Richard Epstein:

“The Case Against the Employee Free Choice Act”

The Ominus Employee Free Choice Act

In Defense of Contact at Will (arguing against a rule that requires employers to have a reason to fire an employee)

A Critique of the New Deal Labor Legislation

His Book Simple Rules for a Complex World includes parts on labour and employment law

His book Forbidden Grounds argues against human rights laws

Bruce Kauffman

Labor Law and Employment Regulation: Neoclassical and Institutional Perspectives (reviews the debates about whether work law is good or bad)

Morley Gunderson

Minimum Wage: Issues and Options for Ontario (studying whether the minimum wage is good public policy)

Milton Friedman and Frederick Hayek

Here are some videos of famous Neoconservative commentators talking about why employment and labour laws are bad (Milton Friedman and Frederick Hayek), as well as represenatives of other prominent perspectives.

Critiques of Labour Law from the Left

I should note too that there are lots of critiques of collective labour law models not only from the ‘law and economics’ and political right, but also from the “left”. 

Judy Fudge and other feminist scholars have long argued that the Wagner model favours and reinforces the privilege of white males, for example.  If that interests you, then look at her work, and mine her footnotes for others. However, while feminist scholars sometimes critique ‘labour law’, they usually are in favour of strong employment regulation protections.

Others, like David Beatty of U of T Law School, made a similar argument against the Wagner model, and argued that majority unionism and many of the core rules in the Wagner model should be abolished.  His stuff is dated now, but there is a great piece he wrote setting out this argument in a book from the 1980s called:  “Ideology Politics and Unionism” in Swan and Swinton (ed.) Studies in Canadian Labour Law (Toronto: Butterworths, 1982).

And other critical/Marxist scholars have argued that labor laws like the Wagner model serve the purpose of capital by ‘de-radicalizing” workers and channeling them into a carefully controlled model where industrial and class conflict are squashed by employers, the state, and unions, who are required to police their own members.  Works by  Leo Panitch and Donald Swartz,  Richard Hyman (from LSE), and many others who will be cited in their works.

So there’s a short list of some of the more infuential arguments and commentators who challenge the normative claim that collective bargaining and (sometimes) employment regulation are good.

David

Pod 1:  Labour Rights as Human Rights

Human Rights Watch:  Unfair Advantage

UDHR (1948)

International Covenant on Civil & Political Rights (ICCPR), 1966 (right to life, no slavery, forced labour, arbitrary arrest, freedom of religion, thought, expression, peaceful assembly, freedom of association, right to form and join unions, etc

International Covenant on Economic, Social, Cultural Rights, 1966 (equal pay for men and women, right to work, right to “enjoyment of just and favorable conditions of work; fair wages, ‘decent living’, safe working conditions, reasonable limitations on working hours, holiday with pay, right to join form unions, right to strike within laws of the country)

ILO Convention 87, 1948 Freedom of Association and Protection of Right to Organize (Canada has ratified this)

ILO Convention 98, Right to Organize and Collective Bargaining (1949) (Canada has not ratified this)

ILO 1998 Declaration on Fundamental Principles and Rights at Work

The debate in Canadian Charter Jurisprudence

2.  POD 3:  Union Security Legislation

Summary of Union Security Laws

Hi everyone,

Yesterday, going through the binder of readings Osgoode sent me, I realized that Reading R3, my paper on Graduated Freedom of Association, was missing.

Here is is:  David Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2012 Queens Law Journal)

I’ve given you the full article, but you can skip pages 524-530.  The paper discusses a possible legal model of minority trade unionism in the Canadian context by drawing on the base elements of ‘freedom of association’ recognized by the Supreme Court of Canada in Charter litigation.

Also, I just received an email from Justice Whitaker.  He informed that he has been assigned to hear a trial in Ottawa the day he is scheduled to visit our class.  He said that if the case settles or is adjourned for some reason, he will come, but otherwise he won’t be able to make the visit.  Therefore, because I know your time is short, you can skip the readings that were assigned for his segment.  Assuming Justice Whitaker cannot come, we will just use this time to finish up material that might run over from earlier sessions, allow you to work on your presentations for the next day, and speak to me about possible essay topics.

See you next week.  David

Here is Reading R4, Chart of Union Security Provisions in Canada.

I will distribute this in class in hard copy, but in case you want an early copy, you can download it here.

Here is the content of an email I sent on March 28th:
It was just pointed out to me that my description of the assignment you are
doing with partners was not as clear as it could be, and some of you may be
confused.

What I wanted with this:

For groups of two people, you are to select one article EACH and summarize that article. In other words, I would receive a summary of both articles the group selects.  Student A will summarize Paper A, student B will summarize Paper B.  Then the group will summarize quickly in a presentation to the class the main points of BOTH paper A and paper B.

For groups of three people, there will necessarily be two students summarizing
the same paper.  This is not ideal, but at the time I wrote the outline, I had
no idea how many students I’d have, so I left open the option that some groups
might need to have 3 people, and I feared we would not have time for groups to
be presenting 3 papers.  So in groups of three, select two papers. Two students
summarize Paper A, and one student summarize Paper B.  Then present both papers as a group in class.

If this procedure creates a problem for you because you have already proceded
differently, please send me an email.

Again, have a good weekend.  David

Hello everyone.

The major grade component for Part II of the course is a short essay of between 10-15 pages.   The challenge in a paper like this is to say something interesting in a short space.  This requires a very precise topic.  I understand that busy LLM students often struggle to isolate a topic.

DUE DATE

Having now spoken with the Osgoode LLM folks about grade submission due dates, I think that May 17 will need to be the due date for the short essay arising from Part II.  That is just over 4 weeks after the final class.

Selecting a Topic

When I did my LLM under Professors Hugh Collins and Paul Davies at LSE, I had a similar paper requirement.  I was a practitioner turned student, like many of you. Professor Collins gave me some advice that is relevant.  He said that you need to forget  writing like a lawyer, and (re)learn how to express an argument succinctly and in a style more like creative writing than a factum. The best examples you have of great labour law writing are the works you’ve read by Harry Arthurs.  To me, they read like great literature, and Harry’s ‘voice’ –what he thinks, how he sees the world–are always very clear.

Thankfully, you are not expected to be Harry.  None of us can be.  But you are expected to submit a paper in which your voice is strong.  I want to know what you think about the issue or problem you have chosen to write about. 

TOPICS

We cover off  5 specific topics in the seminar:

(1)     Are Labour Rights Human Rights?

On Collective Bargaining Law:   (2)  Minority Unionism and Nonunion Represenation; and (3)  Right to Work/Right to Free Ride Legislation

On Legal and Regulatory Theory: (4)  New Governance and Work Law

(5)  The Future of Work Law

Within these topics, there is the potential for a large range of paper topics.   The issues raised by these subjects are hotly contested, so there is lots to bite into.

Here are some examples of possible essay topics to work with:

Some Canadian unions and their supporters have, in recent years, adopted the strategy of arguing that ”labour rights are human rights”.  What explains this move, and is it likely to be a successful strategy for Canadian unions in the long run?

Has the argument that labour rights are human rights influenced Canadian judges and politicians (or judges in another jurisdiction)?  Why or why not?

Is the argument that labour rights are human rights useful for advocates of stronger employment standards laws?

Private sector union density in Canada is at about 15% and falling under the Canadian Wagner model of collective representation.   Can law alter this course?  Should it? 

Should law be used to promote ‘worker voice’?  If so, how can it do this if not through majority, exclusive trade union representation?

What role are ‘worker centres’ playing in advocating on behalf of workers in the United States and Canada?  Should the law attempt to harness those centres towards improving compliance with work law statutes?  How could law do this?

Conservative politicians and think-tanks are arguing for the importation of ‘right to work’ laws.  Drawing on academic studies and legal analysis, what would this mean for Canadian labour relations?

Was Justice Ivan Rand’s compromise wrong?  Debate this question drawing contemporary debates about union security laws in North America.

What is New Governance in application to work law?  Does it offer any useful insight into the challenges of governing work in today’s economy?

Read several papers by an author that writes in the ’New Governance” sphere (Cindy Estlund, Orly Lobel, John Braithwaite, etc) relating to work, and explain and critique their analysis and proposals for legal reform.

Topics on the Future of Work

You can choose a topic on the future of work law that inspires you from either the papers your read or that others presented.  The key here is to not submit a simple summary of the papers like those required for the assignment.  The essay needs to have more of your ‘voice’.

Think about how shifts in the economy or work patterns are changing or are likely to change, and how (or whether) legal models will need to shift to accommodate those changes.  

Arthurs argues for a new definition of “labour law” that sweeps in any legal subject matter that relates to labour markets (i.e. immigration, tax, intellectual property, etc.). This raises some interesting possible topics for papers:

Do you agree with this approach?  Is there a risk to the discipline of labour law of expanding its subject matter in this way?

Choose one sub-category of labour market law that has not traditionally been treated as a matter of work law, like Intellectual Property.  Write a short chapter of what a chapter on IP would look like in a future Law of the Labour Market textbook.

I have just thrown out some ideas.  You can take any of these topics and start working on it.

If you have your own ideas for topics in contemporary issues in work law, send me an email and I will let you know if I think it is workable.

Hope this helps, Cheers, David

Hi everyone.  As I noted in a recent email, there have been a couple of revisions to the syllabus due to some shifting of guest speakers.  I have now added the changes to the revised Syllabus, which you can download here.  You will need to use the password I have sent you via email.

Thursday Evening Class — April 11

In the pod for the opening Thursday evening, I am adding the Topic:  Are Labour Rights Human Rights?

This is a good opening topic, because it introduces the relationship between international legal instruments and domestic labour laws.  It engages important debates that are influencing judicial interpretations, particularly in Canada under recent Charter litigation relating to Section 2(d) freedom of association.  Note how labour advocates have adopted human rights arguments as a strategy to protect labour laws from attack  by governments that favour less regulation and collective bargaining.  This creates a tension, since labour rights and human rights discourse and perspectives differ in some important ways.  Issues raised in this discussion will serve you well when you get to other courses in the program, including Michael Lynk’s Charter course, Kevin Banks’ international labour law course, and Allan Bogg’s course on British labour law.

READINGS

Select and read ONE of the following two articles.  You can of course read both if you have time.

Virginia Mantoubalou, “Are Labour Rights Human Rights?” (2012), European Labour Law Journal

Kevin Kolban, “Labor Rights as Human Rights?” (2010) 50 Virginia Journal of International Law

And then read the following page from the new Canadian organization called Canadian Foundation for Labour Rights:

Solutions: A Vigorous Defence of Labour Rights is Critical and Possible

Friday Afternoon Session: April 12

On Friday afternoon, Justice Kevin Whitaker of the Ontario Superior Court will be joining us for an informal conversation about his experiences since moving from the OLRB to the court.  Rather than assign you a bunch of his cases, I’ve decided to just ask you to review some of my blog entries explaining a few of his interesting decisions on the Bench.   Interestingly, Justice Whitaker has had  a couple of his decisions overturned in high profile, important, and some say, unexpected, appeal decisions on employment law.  We can ask Justice Whitaker about these cases.

The blog entries link to his decisions, so read the cases if you have time:

Jones v. Tsige: New “Tort of Intrusion Upon Seclusion” Recognized by Court of Appeal (Overruling Justice Whitaker’s finding that there is no tort of privacy on Ontario)

Bowes v. Goss Power: No Duty on Employee to Mitigate When Contract Includes Written Notice Term (Court of Appeal overrules Justice Whitaker’s finding that duty to mitigate still applies)

Is Driving Your Employer’s Vehicle Intoxicated Cause for Summary Dismissal?

McLean v. Rawal Ltd:  A Temporary Layoff is a Termination at Common Law (Again)

If you have any questions, please send me an email.  Thanks, David

Hello everyone,

I trust that Professor Tucker’s classes went well.  We are now gearing up for the second part of the course, which is with me.  This section reviews a selection of ‘hot topics’ in the field ranging from collective labour law, to regulatory theory, human rights enforcement, and the many possible ‘futures’ of work law.  The goal of this set of pods is to expose you to academic writing on contemporary debates in the field.

I was required to put the materials together last December, when there was still some uncertainty about the availability of guests, as I mention on the syllabus.  One of our guests was going to be the Ontario Minister of Labour, Linda Jeffrey.  However, due a cabinet shuffle, our guest is now Minister of Housing, and won’t be coming.  I am in discussions with another possible guest to fill that slot, and I will report back shortly.

Our other originally planned guests are still coming, Andrew Pinto and Jim Stanford.  You may have noticed that there are missing readings for the session on human rights on the Friday afternoon, which is the session that will be attended by Andrew.  That’s because I wanted to include some scholarly discussions of the Pinto Report arising out of a symposium held at Queens Law School last fall.  Those papers are being published in the Canadian Labour & Employment Law Journal, of which I am the Articles Review Editor.  I was hoping to receive some of those papers and obtain permission to send them to you as readings. Unfortunately, I have not received the papers yet.  I will fill in that reading list by next week.

I will use this website to post materials and other information, and I will send you an email to advise you when new information has been posted.

I look forward to meeting you all in about 7 weeks’ time.

Best, David