The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada

CLPE Research Paper No. 3/2008

Labour/Le Travail, Vol. 61, Spring 2008

43 Pages Posted: 27 Jan 2008

See all articles by Eric Tucker

Eric Tucker

York University - Osgoode Hall Law School; Cleveland State University, Cleveland-Marshall College of Law

Abstract

In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four grounds, one of which was that Canadian labour history supports the view that collective bargaining had become recognized as a fundamental right prior to the Charter. This article critically reviews the court's labour history and argues that it erroneously asserts that workers enjoyed a right to bargain that entailed a correlative duty on employers to negotiate in good faith prior to the passage of modern collective bargaining legislation during and in the aftermath of World War II. As well, it criticizes the court's method of selectively extracting passages from the work of labour historians while ignoring the critical insights their work provides. This enables the court to construct a highly romanticized and unrealistic story of the steady progress of labour law from repression to toleration to recognition, and to ignore weaknesses of the current regime of industrial legality, a thin version of which its decision protects. Finally, the paper considers the conditions for and implications of the court's ironic emergence as the defender of workers' collective rights against encroachments by the state at the turn of the twenty-first century.

Keywords: labour law, constitutional law, labour history

JEL Classification: J29, K30, K31, K39

Suggested Citation

Tucker, Eric, The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada. CLPE Research Paper No. 3/2008; Labour/Le Travail, Vol. 61, Spring 2008. Available at SSRN: https://ssrn.com/abstract=1087338

Eric Tucker (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 736-5578 (Phone)
416 636-5736 (Fax)

Cleveland State University, Cleveland-Marshall College of Law ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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