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Lecture 10

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Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
Lecture 10: Industrial Conflict  while collective bargain in force, union cannot strike o all bargains by law must have clause prohibiting strikes during the collective bargain o so characterizing an activity as a strike or not a strike is important in order to determine the legality of the action  strikes are needed as weapons, since unlike other agreements, parties canno simply walk away  strikes have different characters in the private and public sectors o private  work stoppage causes loss of prudction, business, customers  may damage the business itself, but workers also suffer  creates incentive for both sides to agree o public  employer saves a lot of money during strike  not worried about losing business, since no competition  pressure comes from public who are angry about not getting their services  but they may get angry at public wokrers instead Industrial Pluralism and Industrial Conflict  while collective bargaining highly regulated, the ultimate means of dispute resolution remains the use of economic sanctions o if union cannot win strike/lockout, it will not get a favorable agreement  so strikes are critical, but a large goal of labour law is avoiding their detrimental effects.  First efforts at regulating strikes basically just banned them outright. o but could not contain unrest.  Moved towards pluralist approach which relied more on dialogue and accomodation o employers required to recognize and bargain with unions, and the use of economic sanctions is tighting restricted  Some have argued that strikes should be banned altogether and replaced with interest arbitration o reasons not to adopt this  absence of agreed upon standards for assessing wages  impossibility of abirtrators to fully understand all the economic variables in a market economy  dnager of less acceptable bargains.  in addition, concerns about public spending have made governments less likely to accept arbitrated outcome in the private sector.  So governments try and push parties away from strikes, without trying to set out the content of the agreement. o this puts the focus on trying to ensure equality of bargaining power. Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (1980)  some argue that Canada's labour unrest should be met with a ban on striking and a turn to arbitration o we don't allow striking most of the time, why not eliminate it all together  but most experts agree there is a natural connection between the right to strike and the right to make a free collective bargain  at heart of collective bargain is the freedom of contract between employer and employee o only parties to the contract truly know what is in their best interests o they should be free to fix the terms of employment in a mutually acceptable fashion  right to freely agree entails right to disagree, to not reach a compromise. o but unlike in the contract arena, parties simply can't just walk away. o we allow unions to provide a countervailing weight against the employers superior bargaining power.  The employer would not reach an argeement at all if he had his druthers- status quo is the preferrable state. o union must be able to pressure employer away from this state  Striking acts as a weapon that can force the employer to face teh consequences of failing to agree o employer will realize it is less painful simply to come to agreement, even if the must move away from their perferred condition.  often the very prospect of strike can provide the needed incentive to come to agreement.  since strikes play such an intrinsically necessary part of our bargaining system, we can't simply ban them.  Weiler here writing during a time of unrest, where the economic slowdown blunted the power of unions. Employer didn't really losemuch from temporary shutdowns when there was little demand in the first place o strikes tend to be more successful the higher the demand for labour. A Constitutional Right to Strike?  Since the Charter, there have been many challenges from union going after laws that limti the right to strike o right to strike not contained in Charter expressly, but unions argue it is implicity in 2(d) and 2(b) o mainly 2(d) is argued. Reference Re Public Service Employee Relations Act (Alberta) (1987) CLLC Facts  Statute removed the right to strike from public sector wokers Analysis: Led Dain  2(d) does not icnlue the right to bargain collectively/strike.  2(d) is a broad right intended to cover many kinds of organizations, and not just about unions. o there is thus broad ramifications from the idea that organizations have a right to engage in particular activities on the ground that the acitivty is essential to give the association meaningful existence  right to strike not necessary to give meaning to 2(d) o look at the way totalitarian regimes restrict the basic association of people o this is what 2(d) is designed to stop .  modern right to bargain collectively no a fundamental right or freedom, but rather the creation of legislation and the courts. Analysis: McIntyre  unions arguing that the right to strike is a necessary incident of the right to associate under s. 2(d)  freedom of association is a response to the totalitarian regimes where meetings are forbidden, curfews enforced, etc.  Value of freedom of association lies in the attainment of individual goals through the aid and cooperation of others. o also promotes general social goals  educates members in the operation of demonatric institution  allow effective sexpressio nof opolitical views thus influencing policy  so freedom of asosciation serves the individual interest, strengthens the social order, and supports democratic ogvernment.  however, an organization is no more than the people tha mke it up o a group of people has no particular rights beyond the sum of the inidividual rights therein. o since you can't have an individual right to bargain collectively, it makes no sense to say there is a right to strike.  Scope of 2(d) o Various theories as to what is covered.  Right to associate limited to a right to associate with others in pursuit of common purposes  very rest4rictive  Protects the right to exercise constitutional rights in common  somewhat less restrictive  the principle that individuals are entitled to do in common what they may lawfully do alone.  collective acitivtes are protected where they are fundamemtnal to our culture and by common assent are deserving of protection.  consititutional protection of all acitivities which are essent
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