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This paper offers a legal pluralist description of the transformation of Canadian labour arbitration over the second half of the twentieth century from an institution of the workplace to an institution of the state. Industrial employment and contractual relations are often described as creating a ‘law of the shop’, or as developing a ‘web of rules’ to govern interactions. These rules are a mix of state law, negotiated norms between employers and employee representatives, amongst workers themselves, and a host of other social and economic forces operating to organize relations at both the industrial and workplace level. Labour arbitrators, appointed and paid for by the parties to interpret collective bargaining agreements, historically expert in the dynamics of the workplace, and concerned with the long term relationships of the parties, have traditionally acted as translators of sorts. Labour arbitration sat at the intersection of the ‘law of the shop’ and the law of the state. Arbitrators acted to translate and mediate between the overarching principles of state law and the terms negotiated by the workplace parties, seeking to use the language and concepts of each so as to protect the system of private contracting from unwanted judicial interference. Towards the end of the 20th century, however, the increasing number of individual statutory rights regime (particularly human rights law) and the expanded scope of arbitral jurisdiction, has served to legalize this previously informal institution, and to effectively pull it into the service of the state’s law.
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As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice.
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In Tranchemontagne v. Ontario (Director, Disability Support Program), the Ontario Court of Appeal entered onto the most recent battleground in the world of statutory human rights law: a challenge to the content of a statutorily-created government program under the auspices of the Human Rights Code instead of under section 15(1) of the Canadian Charter of Rights and Freedoms. In recent years government services claims under the Codes have gained increasing visibility. In such cases a challenge is brought under the Human Rights Codes to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute’s terms.
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This study explores four postwar attempts to re-imagine the role of workers within the corporation and especially their relation to the processes of corporate governance. Employees have been variously conceptualized as “citizens at work,” whose rights of association, speech, assembly, and due process can be secured through collective bargaining; as “stakeholders,” whose interests are entitled to consideration analogous to those of corporate shareholders; as “human capital,” worth preserving and enhancing through enlightened employment policies and practices; and as “investors” — actual holders of corporate equity through pension funds and other vehicles. Despite the descriptive power and normative appeal of these approaches, each ultimately failed. Nonetheless, they provide important insights into the political economy of the corporation, revealing it not only as it is usually imagined — as a site of orderly governance, rational decision making, and purposeful coordination — but also as a site of conflict. This insight may help to explain and predict how the political economy of corporations — rather than their governance structure — determines the fate not just of workers but also of shareholders, debt-holders, and creditors; of corporate managers and professional advisors; of participants in corporate supply and distribution chains, of consumers of corporate goods and services; and of inhabitants of communities and environments which come within the corporate force field.
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Most scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right.
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Author / Editor
- Claire Mummé (5)