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LABRST 1C03 (115)

Lecture - Labour and Human Rights - 2014-03-25

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McMaster University
Labour Studies
Sandra Colavecchia

Labour and Human Rights • resistance? – problems union have: represent a segment of the workforce so when they get sent offshore their biggest mechanism is striking but if your work is getting replaced anyways then that causes problems o workers' rights to organize and bargain – first issue; issue we are talking about is: is a workers ability to organize, bargain, go on strike, and protest during strike, are these things legally protected rights? are they human rights (rights you have as a person)?; is this something that can be seen as protected under the laws of freedom of association; can workers rely on the legal system to protect them; in past: NO protection for workers and right to unionize/organized was not protected under freedom of association; courts generally said about rights that human rights are individually rights and reside in the individual, unions are about collective action and are about people organizing together; this collective action is not individual (they had a very individualized idea of workers rights); in general courts and legal system were hesitant to get into labour debates;  historically = no protection • individual vs. collective rights • free markets - lawmakers wanted to leave this to the free market (wanted them to work issues themselves through free market) • court attitudes – did not want to be active in dealing with these; courts were consistently hostile towards unions; in particular courts saw strikes as very threatening to employers and inconvenience for the public; business serves broad interest unions serve minimal interest so we will protect businesses because they deal with the broader interest • Wagner act = part of commercial laws – Ex. basic model adapted for labour relations; model is collective bargaining and unions set up; what part of the law is the Wagner Act going to be added to; Wagner model put it as a commercial law because it will affect how the market will function and how business operates and how workers are able to organize against employers; Wagner model tries to protect workers who support the union so tried to get it entrenched/framed in bill of rights because it is about the freedom of association (most disagreed with this, thought business were important); if part of human rights law courts will strike it down because they were adamant about their opinion so they insisted to put it in commercial law; to get protection: economic activity – if you have unions with clear support etc. then that is how they survive  human rights activism to 1980s – do not look at labour issues as much; starting in the 1940's there were major waves of human rights activism (because of war, holocaust, etc); focused more on anti-discrimination etc or atrocities committed by authoritative figures (ex/ stopping genocide)  union attitudes to 1980s – on one hand: unions do not frame their own activity as human rights; they are however big supporters of human rights activity (lend lots of support and money during waves); but unions don't see this as their fight (support this and see it has a good cause to stop discrimination, good politics, etc but not their issue); union attitudes: unions hated the legal system; when they looked at the broader problems they saw courts and the legal system as the enemy; would always find the police breaking up their strikes etc; courts often came down very hard on union activity  injunctions – court orders; used against union activity in bad ways during confrontations in the workplace; important because they were a massive grievance and they capture unions attitudes towards courts and their approach to unions; they are court orders; complicated because the context and how long they are supposed to last etc is complicated; supposed to be temporary and in the context of a larger trial; designed to hold everything in place so a trial can settle; turn into a blunt instrument that employers can use (go to judge in middle of the night and hand them injunctions and they sign it "unions are up to something"; these are court orders against unions to stop their process); in general unions were skeptical that courts would protect their rights because of this; feared it because courts were so inclined to not follow rules; injunctions are supposed to be for larger trials (what happens is there is not attempt to have a trial, no temporary limits, they just issue an injunction); some were punitive and charged Labour And Human Rights – Part 2 • since 1980s: labour rights and human rights? – growing interest in framing workers issues as human rights issues; reason why this happened is unclear; starting in 1970s/80s the types of things employers are doing speak to these human rights issues (spying on workers etc); these things look like human rights issues; government start to do things that look like human rights violations (banning strike, banning organization in workplace, opening existing agreements); human rights activists look at what employers are doing and say this looks like human rights violations; this leads to 2 main results: framing these as human right issues put a sharp focus on the debate of employers using their power on people (when frame as human rights issues more attention) o focus on employer violations -  unfair advantage – human rights watch reports; turn attention to employers in America and find widespread violations of basic human rights; how they use their power to get an unfair advantage; declining unionization comes from employers using raw power to target people to push unions out; inspires lots of further study that look at how employers are doing these things; some studies look at employer tactics and where they get their ideas from, sometimes they get it from authoritarian leaders (came up in 2000) o complaints to Int'l labour organization (I.L.O) – go here because courts are not sympathetic to them; been around for almost 100 years (1919); designed as an international body that deals with labour issues (investigations, provide info, set and monitor standards of the workplace etc); in 1980's unions decide to go here; this was before unfair advantage; has international conventions and talk on the right to organize, workers in unions, and right to bargain  committee on freedom of organization – body that you can take complaints to (they investigate and hear your evidence) and issue a ruling; starting in 1990's they start to go and use this; through the 80s and 90s they win a number of cases; people were cynical because ILO has no binding power (they can issue their statements but don't have power); lots of the rulings were against governments • since 2001: shift in court rulings – unions keep going to courts and start issuing and making new challenges regarding organization; keep at it with domestic cases and continue to go to ILO and use charter; courts shift their focus in 2001 (supreme court of Canada) say yes the charter doe protect the right of workers to do some things o Dunmore, 2001 – right to organize; 2001 supreme court ruling; important because actual complaint was about workers in the seasonal agricultural worker program; about Ontario law that banned workers in that program from organizing; UFCW (one of the unions) took the Ontario government to work (banning freedom of association); supreme court agrees with them (strike down law because it violates workers) o B.C. health services, 2007 – Supreme court issues another surprise; case about a strike in BC in the health care sector; BC government dealt with the strike not by just ordering them back to work but said that AND they gave them a deal and left no process left without arbitration and further bargaining; go to supreme court and say this goes against our rights to bargain; courts strike down the law that sends them back to work and stops it; right to collectively bargain is also constitutionally held now] o I.L.O influence – supreme court goes to ILO for precedent setting laws; for a lot of human rights activists this feels like a breakthrough and big shift; because courts are not saying rights to organize/bargain are only collective rights, they are saying they are individual rights now; basic fundamental shift in how the law interprets these things • critics – focus on significance of rulings and the whole idea of going to the courts and looking at this human rights framework; strike down laws but don't say how to replace it, what they say is these laws cross the line but they don't talk of where the line is; o limits of rulings – in Dunmore they say they have the right to organize now; but to organize what?; they only say you can't stop them from organizing full on; health care sector --> just imposing something without bargaining violates the charter, courts say they cross the line but what will the line be now? they don't specify; said they have taken away bargaining process but what does the bargaining process mean? the courts don't say; when you get subsequent court casing testing the court's rulings they often avoid drawing a line (Ontario government passing new law of seasonal workers organizing); court dodge by saying you haven't tried to form any organizations under this law yet (even though on paper it is useless nobody has tried and since nobody has tried we are not going to strike it); also say they are not going to spell out what this stuff is yet (organizing etc) o legalized politics – speaks to where should unions put their resources, energy, etc; should they focus on the court system or somewhere else; unions have limited resources to pursue these things so what should they do; for lots putting their money into lawyers is not the best way to go; you need to put that money towards the workers; to feel like they are doing something they resort to the law because they don't feel powe
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