A Model of Responsive Workplace Law
(2012) 50 Osgoode Hall Law Journal 47
45 Pages Posted: 29 Nov 2011 Last revised: 9 Oct 2018
Date Written: December 28, 2012
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether 'decentred' or "new governance" regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. A law that treats employers that comply with protective employment legislation (''high road' employers) as responsible actors with greater rights to participate in the unionization decision of its employees, while restricting the rights of employers that violate employment laws ('low road employers') could encourage greater compliance with employment regulation while also facilitating the spread of collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a 'dual regulatory stream' model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
Keywords: labor, labour, labour law, labor law, employment law, regulatory theory, new governance, decentred regulation, unions, collective bargaining,risk
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