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I promised that I would pass along some leading writings that advocate against unions, collective bargaining, and strong employment law protections. Here are some that I quickly through together:
Richard Posner
Economic Analysis of Sex Discrimination Laws
Richard Epstein:
“The Case Against the Employee Free Choice Act”
The Ominus Employee Free Choice Act
In Defense of Contact at Will (arguing against a rule that requires employers to have a reason to fire an employee)
A Critique of the New Deal Labor Legislation
His Book Simple Rules for a Complex World includes parts on labour and employment law
His book Forbidden Grounds argues against human rights laws
Bruce Kauffman
Labor Law and Employment Regulation: Neoclassical and Institutional Perspectives (reviews the debates about whether work law is good or bad)
Morley Gunderson
Minimum Wage: Issues and Options for Ontario (studying whether the minimum wage is good public policy)
Milton Friedman and Frederick Hayek
Here are some videos of famous Neoconservative commentators talking about why employment and labour laws are bad (Milton Friedman and Frederick Hayek), as well as represenatives of other prominent perspectives.
Critiques of Labour Law from the Left
I should note too that there are lots of critiques of collective labour law models not only from the ‘law and economics’ and political right, but also from the “left”.
Judy Fudge and other feminist scholars have long argued that the Wagner model favours and reinforces the privilege of white males, for example. If that interests you, then look at her work, and mine her footnotes for others. However, while feminist scholars sometimes critique ‘labour law’, they usually are in favour of strong employment regulation protections.
Others, like David Beatty of U of T Law School, made a similar argument against the Wagner model, and argued that majority unionism and many of the core rules in the Wagner model should be abolished. His stuff is dated now, but there is a great piece he wrote setting out this argument in a book from the 1980s called: “Ideology Politics and Unionism” in Swan and Swinton (ed.) Studies in Canadian Labour Law (Toronto: Butterworths, 1982).
And other critical/Marxist scholars have argued that labor laws like the Wagner model serve the purpose of capital by ‘de-radicalizing” workers and channeling them into a carefully controlled model where industrial and class conflict are squashed by employers, the state, and unions, who are required to police their own members. Works by Leo Panitch and Donald Swartz, Richard Hyman (from LSE), and many others who will be cited in their works.
So there’s a short list of some of the more infuential arguments and commentators who challenge the normative claim that collective bargaining and (sometimes) employment regulation are good.
David
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Pod 1: Labour Rights as Human Rights
Human Rights Watch: Unfair Advantage
International Covenant on Civil & Political Rights (ICCPR), 1966 (right to life, no slavery, forced labour, arbitrary arrest, freedom of religion, thought, expression, peaceful assembly, freedom of association, right to form and join unions, etc
International Covenant on Economic, Social, Cultural Rights, 1966 (equal pay for men and women, right to work, right to “enjoyment of just and favorable conditions of work; fair wages, ‘decent living’, safe working conditions, reasonable limitations on working hours, holiday with pay, right to join form unions, right to strike within laws of the country)
ILO Convention 87, 1948 Freedom of Association and Protection of Right to Organize (Canada has ratified this)
ILO Convention 98, Right to Organize and Collective Bargaining (1949) (Canada has not ratified this)
ILO 1998 Declaration on Fundamental Principles and Rights at Work
The debate in Canadian Charter Jurisprudence
2. POD 3: Union Security Legislation
Summary of Union Security Laws
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Hi everyone,
Yesterday, going through the binder of readings Osgoode sent me, I realized that Reading R3, my paper on Graduated Freedom of Association, was missing.
Here is is: David Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2012 Queens Law Journal)
I’ve given you the full article, but you can skip pages 524-530. The paper discusses a possible legal model of minority trade unionism in the Canadian context by drawing on the base elements of ‘freedom of association’ recognized by the Supreme Court of Canada in Charter litigation.
Also, I just received an email from Justice Whitaker. He informed that he has been assigned to hear a trial in Ottawa the day he is scheduled to visit our class. He said that if the case settles or is adjourned for some reason, he will come, but otherwise he won’t be able to make the visit. Therefore, because I know your time is short, you can skip the readings that were assigned for his segment. Assuming Justice Whitaker cannot come, we will just use this time to finish up material that might run over from earlier sessions, allow you to work on your presentations for the next day, and speak to me about possible essay topics.
See you next week. David
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Here is Reading R4, Chart of Union Security Provisions in Canada.
I will distribute this in class in hard copy, but in case you want an early copy, you can download it here.
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