Back to the Future of Canadian Labour Law


Added on Aug 27, 2020

Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576016 Abstract The invitation to present the H.D. Woods Lecture came with a proposed subject: the future of labour law. That future won't come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the Wagner Model which has governed since the 1940s. Instead, change will come first in the form of smaller "foreshocks". In this paper, which is the text of the 2019 H.D. Woods lecture, I argue that clues as to what those foreshocks may be found can be found in important debates that took place during the 1980s. One of those debates examined comparative labour law and proposals to improve the Wagner Model of collective bargaining by merging features of the Canadian and U.S. versions of that model to create a hybrid model that would better facilitate access to collective voice. A second debate related to the potential impact of the Charter of Rights and Freedoms on the future of Canadian Labour law. David Beatty argued that the Charter would eventually lead to the dismantling of the Wagner Model and its replacement with a new model that extended the reach of collective bargaining to workers long excluded by the Wagner Model. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 has slowly shifted the labour law agenda towards a landscape that shares much in common with that which Beatty envisioned long ago. The paper concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some 40 years ago. Keywords: Labour Law, Employment Law, Charter, Comparative Law, Wagner Model, Collective Bargaining, Freedom of Association