Who’s Running the Road?: Street Railway Strikes and the Problem of Constructing a Liberal Capitalist Order in Canada, 1886-1914

Street railway strikes in the late nineteenth and early twentieth centuries were frequently the occasion for large-scale collective violence in North American cities and challenged the capacity of local authorities to maintain civic order. However, this was only the most visible manifestation of the challenge that street railway workers’ collective action posed to the order of liberal capitalism, an order constructed on several intersecting dimensions. Using the example of Canadian street railway workers from 1886 to 1914, a period of rapid urbanization and industrialization, this article explores the ways the collective action by workers and their community sympathizers challenged the workplace, marketplace, and “streetplace” orders of liberal capitalism. It discusses how those challenges were met through political and legal processes of resistance and accommodation, taking into account the fragmentation of state power, hostile public opinion toward the street railways, and conflicting views over the legitimate scope for workers’ collective action

Renorming Labour Law: Can We Escape Labour Law\u27s Recurring Regulatory Dilemmas?

Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspective understood that the pursuit of protective labour law would produce recurring regulatory dilemmas requiring trade-offs between efficiency, equity and voice and/or between workers’ and employers’ interests. Recently, some scholars have argued that labour law needs to be renormed in ways that are market constituting rather than market constraining, and that this change would avoid regulatory dilemmas. This article reviews the concept of regulatory dilemmas as formulated in the three major traditions of labour law scholarship, critically assesses recent work by Deakin and Wilkinson and by Hyde that proposes to renorm labour law and overcome regulatory dilemmas, and proposes an alternative approach to understanding regulatory dilemmas based on the work of Wright

The Faces of Coercion: The Legal Regulation of Labor Conflict in Ontario, 1880-1889

This article is part of a larger study of Canadian labor law before the advent of statutory collective bargaining, which questions the traditional periodization and the meanings of the categories. It is often an un-articulated premise that the exercise by employers of their superior economic power, as imparted and structured through the law of property and contract, is not coercion. Rather, the analysis is restricted to direct state coercion, exercised through the criminal law, the police, and the injunction. This framework produces a partial view of the role of law and interferes with an analysis of the strategic choices made by workers and employers. By bringing \u27normal\u27 market relations back in, we can more fully examine the nuances of coercion and consent at a given time.

From Condition of Limited Liability to Exceptional Remedy: The History of Shareholder and Director Liability for Unpaid Workers\u27 Wages in Canada

This article is part of a larger study of the recurrent dilemmas that arise when protective labor law conflicts with the norms of capitalist legality. In this particular case, shareholder liability for unpaid workers\u27 wages was first enacted in mid-nineteenth century New York State as a condition of providing investors with easy access to the corporate form at a time when there was deep unease about its legitimacy. The Canadian debate was more muted, but prominent reform politicians expressed similar concerns about the corporation, leading them to impose first shareholder and then director liability for unpaid workers\u27 wages. In the latter part of the nineteenth-century, as the legal norms of separate legal personality and the limited liability of the makers and managers of corporations hardened into legal bedrock, the understanding of director liability as a condition of incorporation was inverted by the judiciary and treated as an exceptional privilege to be enjoyed only by the most vulnerable workers. In the late twentieth century, the Supreme Court of Canada adopted a similar line of reasoning to justify its holding that workers were not entitled to recover unpaid termination and severance pay from directors when their corporate employers defaulted

Giving Voice to the Precariously Employed? Mapping and Exploring Channels of Worker Voice in Occupational Health and Safety Regulation

In most contemporary occupational health and safety (OHS) regimes, great emphasis is placed on amplifying worker voice in regulation through worker health and safety representation in the employers’ OHS management system. Historically, these regimes were designed on the assumption that the workers who would use these mechanisms were full-time workers having secure jobs with their current employers. This is manifestly no longer true, posing a serious challenge to the efficacy of these regimes. After setting out the historical context of worker voice in OHS regulation, this paper begins by mapping out eight channels of worker voice based on the combination of three variables: the subject of worker voice, the object of worker voice and the audience for worker voice. The aim of this exercise is not only to provide greater analytical clarity to discussions of worker voice in OHS regulation, but to also open up the discussion about alternative models of worker voice that might better fit the reality of today’s labour market. The paper examines the research on how well precariously employed workers are able to use existing channels of voice and concludes by considering strategies and tactics for amplifying their voice in OHS regulation

Industry and Humanity Revisited: Everything Old is New Again: Review of Paul C. Weiler, Governing the Workplace

The decline of American unionism is now a well-documented phenomenon. Its causes and consequences, however, remain the subject of intense debate. Regardless of one’s view of this development, it clearly poses a challenge to the traditional techniques for the legal regulation of the employment relationship, and especially for state-sponsored collective bargaining which has been the centerpiece of American labour policy since the enactment of the Wagner Act in 1935. It is this crisis in American labour and employment law which Paul C. Weiler seeks to address in his new book, “Governing the Workplace: The Future of Labor and Employment Law”. In this paper, Weiler’s work is compared to another expert in labour relations, who stepped onto the American labour scene at a severe and critical juncture in its history: William Lyon Mackenzie King. In his book, “Industry and Humanity”, King articulated the principles upon which labour relations should be reconstructed. This paper explores first the common ideological terrain occupied by King and Weiler and shows how it drives them in the same direction as reformers. Then, the paper endeavors to show the inadequacy of that perspective as a way of understanding labour conflict and how it limits the options for reform quite narrowly. The apparently “liberal” reforms being suggested mask an extremely conservative agenda. Finally, the paper suggests an alternative analysis of the crisis of labour, on which is ignored by Weiler, which leads to very different political agendas than the ones he promotes

Shall Wagnerism have no Dominion?

The Wagner Act Model has formed the basis of Canada’s collectivebargaining regime since World War II but has come under intense scrutiny inrecent years because of legislative weakening of collective bargaining rights,constitutional litigation defending collective bargaining rights and decliningunion density. This article examines and assesses these developments, arguingthat legislatively we have not witnessed a wholesale attack on Wagnerism, butrather a selective weakening of some of its elements. In the courts, it brieflyappeared as if the judiciary might constitutionalize meaningful labour rights andimpede the erosion of Wagnerism, but recent judicial case law suggests theprospects for this outcome are fading. While the political defence of Wagnerismmay be necessary when the alternatives to it are likely worse, holding on to whatwe’ve got will not reverse the long-term decline inunion density. The articleconcludes that at present there are no legal solutions to the labour movement’sproblems and that innovative efforts to represent workers’ collective interestsoutside of formal collective bargaining provide a more promising alternative

The Determination of Occupational Health and Safety Standards in Ontario 1860-1982: From Markets to Politics to...?

The author reviews the historical development of the decision-making frameworks within which courts and the Legislature have made choices regarding the allocation of risks to health and safety in the workplace. Arguing that this development has been conditioned by the necessity of satisfying in a capitalist democracy conflicting demands to facilitate capital accumulation and to justify to the electorate the manner in which choices regarding the structure of the processes of production have been made, the author contends that recent pressure to adopt cost-benefit analysis to satisfy the demands of legitimation and accumulation, and challenges its adequacy as a normative and a political principle. In setting his criticism in the context of a broad view of the political and historical aspects of legal rule-making, the author can address the limits on present allocations of risk imposed by the structure of society, and discuss the possibility of significant future reform

Great Expectations\u27 Defeated?: The Trajectory of Collective Bargaining Regimes in Canada and the U.S. Post-NAFTA

From the beginning of the free-trade era one contentious area has been the impact of trade liberalization on labor law. Opponents of NAFTA (and some supporters) predicted a regulatory race to the bottom (RTB) would ensue leading to increasingly deregulated labor markets. The result would be weaker collective bargaining laws, lower minimum standards, and a decline in the social wage. In recent years a number of scholars have examined the question in light of more than fifteen years experience under CUFTA and ten under NAFTA and there seems to be a growing consensus that, contrary to those \u27great expectations\u27, labor laws in North America have not been significantly weakened. In this article, I re-examine the effects of NAFTA on collective bargaining law in Canada and the United States. My contribution to the debates comes down to two points. On the one hand, I argue that the emerging consensus understates the impact of NAFTA-style trade liberalization on the legal regulation of collective bargaining because its focus is artificially narrow. In reaching their conclusions, \u27new consensus\u27 scholars have looked exclusively at changes in private sector collective bargaining legislation. I argue this produces a misleading picture of the impact of trade liberalization because it omits public sector collective bargaining and, even more importantly, it fails to consider the impact of trade liberalization on the effectiveness of statutory collective bargaining schemes. If the focus is broadened to include public sector bargaining and labor law\u27s effectiveness, then one finds there has been more labor market deregulation than consensus scholars acknowledge. On the other hand, I accept that, even after broadening our analytical lens, the downward trajectory of the collective bargaining regime has not been as steep as many RTB theorists predicted. I argue that the model upon which this prediction was based was overly structural and that a more nuanced one is needed. Such a model must better take into account a range of factors that mediate the impact of NAFTA-style trade liberalization on labor market regulation. These mediations occur at the economic level, within the collective bargaining regime itself, and in the external environment that shapes the direction of state action