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JS380 (1)
Chapter 5

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Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
Chapter 5: The Right of the Charter  All of these rulings ignored the important contextual differents between kinds of organizations o unions may have different needs than other associaations  so on the whole the old aporach to 2(d) and collective bargaining needs to be reconsidered.  Collective bargaining does fall within the scope of section 2(d) o general purpose of 2(d) are consistent with at least some protection of collective bargaining. o The history of Canadian labour history reveals the fundemental nature of collective bargaining  organization to bargain has long been recognized as a fundamental Canadian right which predated the Charter  suggests charter framers intended to included it in 2(d)  while the actual right ot bargain collectively may be relatively true in the sense of legal framweorks and protections, it has long been recongized as a fundemental aspect of Canadian history  as society entered industrial age, despite the attempts of employers, it became obvious that unions and collective bargainig were a natural part of a mexied economy that should be accomodated within the framework of rights and responsibilties that is the labour law system. o three basic eras of labour relations law  repression  law was used as a tool to limit the ability and right of workers to unionize  unions considered illegal in England for some time o Combinations Act o repealed in 1824, followed by strike, reintroduced again with criminal sanctions against workers.  so freedom to associate was permitted and collective bargaining could be pusued, strike actions were mostly illegal o no effective way to rsesist employers who didn't want to bargain  while some of htese things were eventually repealed, British courts continued to be suspicious of trade unions and used criminal consiracy and other economic torts oto repress unions o while Parliament responded with legislation protecting trade unions  not clear whether this repressive law was brought into Canada or whether Canada remained more tolerant  Tolerance of Workers' Organizations and Collective Bargaining  Toronot newspaper strikers led to public concern since criminal charges were filed  Canada adopted TRade Unions Act in order to immunize unions from existing laws considered to be opposed to the spirit of the liberty of the individual  by start of century, main criminal obstacles to unionism had been broken down  employers could refuse to bargain, but workers had the powerful tol of calling a strike to force recognition and bargaining.  the unrpecendented number of strkes led to the passing of the Wagner Act model of legislation.  Recongition of Collective Bargaining  adoption of a series of statutes to promote collecitve bargaining o first, tried to have the labour minister impose conciliation on the parties, but didn't really work.  So, Wagner Act, aimed at o industrial peace, collective bargaining, equality of bargaining power, free choice, increased consumption to stimulate the econom, and industrial democracy  most provinces adapted legislation incorporting these objectives  so union now had right to have their chosen represntative treated as a union by their employer o recgnition no longer required striking.  over time, Wagner act extended to the public sector. o government could still use legislation to impose unilaterally on their own employees specific conditions (often wages)  so while unions began forming in the 18th century, they were first resisted to by government o when thye finally got some protection, there was no statutory right to negotiate collectively, and employers could choose to ingore them o this led to more and more strikes o this led in turn to the Wagner model  Collective Bargaining in the Charter Era  By the time the Charter was adopted, collective bargaining had a long tradition and was recognized as part of the right to associate  so collective bargaining has long been recognized in Canada, and is the most significant collective activity through which freedom of association is expressed in the labour context  the concept of freedom of association under s. 2(d) of the Charter includes this notion of a procedural right to collective bargaining  INternation law also protects collective bargaining as part of freedom of expression o various UN declarations and ILO documents protect the right to collective bargaining as part of freedom of association o since intenrational conventions to which Canada is a party recognize the right of members of unions to engage in collective bargaining, s. 2(d) of the charter should recognize at least the same level of protection  Charter values support protecting a process of Collective Bargaining under s. 2(d) o Charter is aimed and human dignity, equality, liberty, repsect for the person, and enhancement of democracy all are key CHarter values o the right to bargain collectively with an employer enhances this human dignity by giving works impact into the workplace which is a major aspect of their life. o it is the means through whihc employees participate in setting the terms and conditions of employment o working conditions are key to an individuals self-understanding  Section 2(d) and the Right to Bargain collectively o so now that the right to bargain collectively is under s. 2(d), what does htis entail o applies only to state action, including the passage of legislation  in this case the concern is on legislation (the act), not on an act of government. o based on dunmore which held that 2(d) applies to associational activitise themselves, the constitutional right to bargain collectively concerns ability of the workres to get together to acheive particular work-related objectives  but does not protect the outcome at all. o employees have the right to unite, to present demands to employers, and to engage in discussions in an attempt to achieve these goals o it protects only "substantial interference", not any interference ata ll. o as long as the effect of the state law or action is enough to substantially intefere with the activity of collective bargaining, there is a breach of s. 2(d) o it is thus a limited right  no guaranteed otucome  no right to a particular model of labour relations or a specific bargaining method, just a general process of laboour relations  and the interference must be sustnatial o to be substantial the intent or effect must seriously undercut the activity of workers joing together to pursue the common goals of negotiating workplace conditions and terms
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