A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada

(2012) 33(3) Comparative Labor Law and Policy Journal 379-416

Oxford Legal Studies Research Paper No. 33/2012

Posted: 11 Jun 2012

See all articles by Alan L. Bogg

Alan L. Bogg

University of Bristol

K. D. Ewing

King's College London – The Dickson Poon School of Law

Date Written: June 1, 2012

Abstract

This article examines recent Canadian jurisprudence on freedom of association and the right to collective bargaining, focusing in particular on the recent decision of the Supreme Court of Canada in Fraser v Ontario. The article argues that the right to collective bargaining is not in fact protected by the majority speech in Fraser because of a failure to grasp what collective bargaining actually is (especially as defined in international labour standards). The second part of the article examines the dissenting view in Fraser, which draws heavily on the work of Brian Langille, a Canadian labour law professor. That view defends a ‘thin’ conception of freedom of association that would exclude a right to collective bargaining on three grounds: that exclusion respects the Hohfledian distinction between ‘rights’ and ‘liberties’; that freedom of association should be understood as an individual rather than a group right; and that it violates neutrality to identify collective bargaining as an activity of special constitutional importance in freedom of association. The article engages critically with those arguments, and defends an alternative ‘thick’ conception of freedom of association that encompasses a fundamental right to collective bargaining.

Keywords: Labour law, collective bargaining, freedom of association, Fraser v Ontario

Suggested Citation

Bogg, Alan L. and Ewing, K. D., A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada (June 1, 2012). (2012) 33(3) Comparative Labor Law and Policy Journal 379-416; Oxford Legal Studies Research Paper No. 33/2012. Available at SSRN: https://ssrn.com/abstract=2081975

Alan L. Bogg (Contact Author)

University of Bristol ( email )

WIlls Building
Queens Road
Bristol, BS8 1RJ
United Kingdom

K. D. Ewing

King's College London – The Dickson Poon School of Law

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom
+44 (0)20 7836 5454 (Phone)

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