The Future of Labour Law: On the Shoulders of Giants
University of Toronto Law Journal, (2022), 71(2), Forthcoming
47 Pages Posted: 21 Jul 2020 Last revised: 23 Nov 2020
Date Written: November 20, 2020
The future of Canadian labor law 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 fore-shocks to the Wagner model and other periphery models of collective bargaining law. Clues as to what those fore-shocks might be may be found in two important debates that took place during the 1980s.
The first debate, lead by Harvard's Paul Weiler, explored the question of how to restore collective bargaining in the U.S. when private sector union density had fallen to 15 percent, roughly Canada's level today. Weiler proposed a hybrid model that merged features of the two countries' labor laws as a means to restore collective voice in the US. The second debate related to the potential impact of the Charter of Rights and Freedoms on the future of Canadian Labor law. Professor David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner Model and its replacement with a new liberalized model that extended the reach of collective bargaining to corners of the economy it had not reached before, where many of the most precarious workers toil. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labor law. However, in important ways, Charter jurisprudence has now caught up to Beatty's normative vision of a post-Charter labor law. It is therefore important to revisit his ideas to find clues as to where we may be headed in labor law. The paper concludes with some predictions about the changes that will soon come to Canadian labor law drawn from these debates of some 40 years ago.
[An earlier version of this paper was entitled "David Beatty's Redemption (And Other Thoughts on the Future of Labour Law"]
Keywords: Labor, Labor, Labor Law, Law, Industrial Relations, Labor Policy, Legal History, Wagner, Union, Collective Bargaining
JEL Classification: J18, J38, J50, J51, J52, J53, J58, K20, K31, L50, M14, M54, P33
Suggested Citation: Suggested Citation