Introduction

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Chapter 1: Introduction

1:100 OUR OBJECTIVES

This casebook has two purposes. One is to provide some familiarity with the legal regimes

that purport to regulate workplace relations, and with the normative foundations of those

regimes. The other, undoubtedly more important in the long run, is to encourage reection

on whether changes in the organization of work, and changes in the capacity of govern-

ments to regulate employment relations in Canada and elsewhere, are outstripping labour

and employment law as we know it and undermining its eectiveness.

In recent decades, it has become clear that collective bargaining cannot be relied on to

provide as much protection as was once expected of it. According to Statistics Canada, as of

, . percent of workers belonged to a union or were covered by a collective agreement,

and unionization rates varied signicantly by province, from about  percent in Alberta

to almost  percent in Quebec. This means that close to  percent of Canadian workers

remain beyond the reach of collective bargaining. That is so for historical, social, and eco-

nomic reasons, and because of the length and diculty of the legal procedures for setting

up collective bargaining relationships. Those factors will become apparent in the chapters

that follow. At this point it is enough to note that the factors limiting the spread of collective

bargaining through the workforce have proved to be very persistent and not easily remedied

by changes in collective bargaining legislation or in the interpretation and application of

that legislation by labour relations boards. Even where collective bargaining has been able

to penetrate hard-to-organize sectors of the workforce, the balance of economic power in

those sectors often remains such that unions cannot negotiate terms that are considered

minimally acceptable in our society. In addition, even long-standing collective bargaining

relationships commonly fail to come to grips with important but often overlooked issues

such as health and safety in the workplace and the persistence of unacceptable forms of

employment discrimination.

Canadian labour lawyers, and those in many other countries as well, have long under-

stood labour law as constituted in a certain way. They have had a narrative about the reality

of the working world and how the law applies to that world. The narrative has explained and

provided a framework for the details of the various labour laws which apply to work, and has

made them part of a more or less coherent whole. This received wisdom evolved in the twen-

tieth century against the backdrop of the economic and social organization which prevailed

throughout much of that century. Most productive activity was organized through continu-

ing employer-employee relationships: employers (rms) entered into long-term contracts

of employment, giving employees security and stability in return for being subordinated to

CHAPTER : INTRODUCTION

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the control of the rm. The law that applied to employees and employers was understood

at its most general level as seeking to achieve justice in the contractual relationship known

as employment. This is a familiar, if controversial, picture for lawyers — re-regulating con-

tract power in the name of justice. A problem with that understanding of labour law, how-

ever, is that it often overlooked the lack of bargaining power of specic groups of workers

(agricultural and domestic workers, for example), some of whom have been the subject

of long-standing and tenacious exclusions from legal protection and collective bargaining.

More generally, discrimination embedded in how work is organized and remunerated has

also undermined the role of labour and employment law in the quest for justice at work.

Changes in technology and in the social and economic organization of productive activ-

ity, as well as the increasingly integrated nature of global systems of consumption and pro-

duction, have altered the reality that labour law seeks to comprehend and address. As we will

see, the resulting problems are quite fundamental. Are the basic categories of employment

law’s subjects (“employee” and “employer”) still relevant? Has the existing paradigm in fact

brought justice, in any accepted meaning of that term? Are there any new paradigms which

might do so? Is the state regulation of labour markets still viable? In short, has labour law

lost its grip on what it was meant to take hold of? Can it get a grip?

In this chapter, we will begin with a look at the historical development and sources of

labour and employment law. Next, we will explore the controversies, both normative and

empirical, which arise out of the received wisdom in this area of law. Then we set out some

reections on the changing world of work and how labour and employment law might

respond to it. We end the chapter with an overview of constitutional divisions of powers

relating to labour and employment relations.

In planning this casebook, a basic pedagogic decision we had to make was whether to

treat the three regimes together, by considering how all three deal with a particular substan-

tive question (for example, the types of workers that are considered to be employees), then

moving on to see how all three treat another such question (for example, the principles that

govern the termination of employment). This approach would have had the virtue of putting

into the same chapter all of the law on a particular substantive question, but at the cost of

obscuring the overall structure of each of the three regimes and making it hard to discern

their distinctive features. We judged this cost to be too high. Therefore, after the next chapter,

in which we consider international and transnational labour and employment law, we will

proceed through each of the three regimes in the roughly chronological order in which they

are arranged by the received wisdom: the common law rst, then collective bargaining law,

and nally, direct statutory regulation.

1:200 HISTORICAL DEVELOPMENT AND SOURCES OF LABOUR AND

EMPLOYMENTLAW

Labour relations and employment law in Canada are conventionally seen as consisting of

three closely interrelated regimes that regulate the employer-employee relationship. Out-

side of Quebec, the rst of those regimes is the common law of employment, which treats

employers and employees as free and equal contracting parties in the buying and selling

The Contract of Employ ment in Canadian Common Law and Quebe c Civil Law | :

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of labour. It is based on the notion of a contract of employment between employer and

employee, formed by negotiation between individuals and enforced by the courts, much

like the classic commercial contract. The common law of employment is the subject matter

of Chapter  of this book. In Quebec, which is governed by civil rather than common law,

legislation codies contractual obligations of employers and employees. Quebec’s labour

and employment law system is distinct in other ways as well. We briey consider these in

Section :, below.

Collective bargaining, which is examined in Chapters  to , is the second regime. It is

based on the realization that the usually inferior economic position of the employee vis-à-vis

the employer keeps the individual employment contract from being a satisfactory regula-

tory mechanism. For the negotiation of terms and conditions between individual employers

and employees, the collective bargaining regime substitutes collective negotiation between

union and employer or between groups of unions and groups of employers. The individual

employment contract is replaced by the collective agreement. When adjudication is needed

under collective bargaining, it is usually done by specialized administrative tribunals (labour

relations boards and arbitration tribunals) rather than by the courts.

Direct statutory regulation is the third regime governing the employer-employee relation-

ship and is the subject of Chapters  and . Chapter  deals with employment standards

legislation on such matters as minimum wages, limitation of working time, and health and

safety. Legislation of this sort has existed for a long time to protect employees against some

of the excesses of the individual contract regime. Until fairly recently, such legislation was

seen as having a very subordinate role — as being little more than a stop-gap to provide

basic protection for employees who remained outside the reach of collective bargaining or

whose bargaining power, even when marshalled collectively, was insucient to secure min-

imally acceptable employment terms. Chapter  deals with what has been the fastest-grow-

ing aspect of labour and employment law in recent years: legislation designed to advance

human rights and equality in the workplace.

In recent years, Canadian courts interpreted and applied constitutional freedoms under

the Canadian Charter of Rights and Freedoms so as to protect worker rights to organize, bar-

gain collectively and strike. Further, courts have increasingly had recourse to international

law in interpreting and applying such Charter protections. Constitutional and international

law have thus become additional important sources of labour and employment law.

1:210 The Contract of Employment in Canadian Common Law and Quebec Civil Law

Working for wages under a negotiated contract is a relatively recent historical phenomenon,

and took several centuries to emerge. In feudal times, production was based on status rela-

tions: servants owed duties of fealty to their masters, who had complete control over them.

In the eighteenth century, new contract doctrines that facilitated the use of free wage labour

emerged. Sir Henry Maine acclaimed the evolution of modern contract as a marvellously

progressive development. The following excerpt suggests, however, that the principles of

individual freedom and equal treatment embodied in the common law contract of employ-

ment were infused with paternalistic elements, and operated within an overarching system

of unequal power.