The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond

Fudge, Judy

doi:10.1093/indlaw/dwm038

Cited by 18 publications

(14 citation statements)

References 4 publications

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“…Formal universal state ‘hard’ regulation is viewed as declining in favour of ‘softer’ more particularised forms, including voluntary corporate codes and monitoring by civil society organisations emphasising human rights (Arthurs 2006). Unions have also utilised a human rights discourse and appealed to the International Labour Organization (ILO) or sought legal rulings from the European Court of Human Rights to assist their struggles at other scales (Fudge 2008, 26–7). Yet some labour scholars argue that human rights discourse prioritises individual rights over workers’ collective rights, and reliance on legal scaling up may distract from grass‐root struggles (Arthurs 2006; Tucker 2008).…”

Section: Labour Geography the State And Labour Lawmentioning

confidence: 99%

“…Yet some labour scholars argue that human rights discourse prioritises individual rights over workers’ collective rights, and reliance on legal scaling up may distract from grass‐root struggles (Arthurs 2006; Tucker 2008). Similarly, international institutions and rulings are often ambivalent about labour rights, with the ILO advocating ‘free trade unions’ but not strong ones (see Caraway 2006), while the right to freedom of association can also be used against unions as freedom not to associate (Fudge 2008, 47). Labour’s scalar capacities, then, are both an influence upon and product of nation‐state and, increasingly, international labour law.…”

Section: Labour Geography the State And Labour Lawmentioning

confidence: 99%

“…Social and community unionism have thus had important successes. In conjunction with these strategies, unions have increasingly resorted to the Canadian court system – especially the Canadian Supreme Court – to defend their position (Adams 2007; Fudge 2008; Tucker 2008). One of the most important cases was brought by the Health Employees Union (HEU) of British Columbia – a public sector union with a long progressive history (Camfield 2006; Cohen 2006; Isitt and Moroz 2007).…”

Section: Legal Rescalings? the Heu And The Fight Against Bc’s Bill 29mentioning

confidence: 99%

“…Despite such positive reactions, I argue that this ruling needs to be understood within a historical series of legal framings of labour’s rights by the Canadian state that have both reflected and circumscribed labour’s scalar capacities (Palmer 2003; Panitch and Swartz 2003; Tucker 2008). Importantly, the HEU struggles and the Court’s decision also reflect new forms of state governance drawing on international labour law and the redefining of labour rights as human rights (Compa 2008; Fudge 2008). I thus place this study within human and labour geography debates concerning the law and the state.…”

Section: Introductionmentioning

confidence: 99%

“…Unable to overturn the Bill through strike action, the union scaled up via the federal Supreme Court and the International Labour Organization (ILO) to force Canada to honour ILO conventions to which it had previously committed. Despite the HEU’s victory, however, there is significant debate amongst scholars concerning labour’s use of international law (see Compa 2008; Fudge 2008). As critically, the case reveals the defensiveness of Canadian workers when confronting neoliberalism.…”

Section: Introductionmentioning

confidence: 99%

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Scaling up by law? Canadian labour law, the nation‐state and the case of the British Columbia Health Employees Union

Rutherford¹

2012

Trans Inst British Geog

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This paper examines the Canadian Supreme Court’s 2007 ruling in favour of the Health Employees Union (HEU) versus the British Columbia government. Based on international labour law, this ruling recognised collective bargaining as part of the Canadian Charter of Rights and Freedoms. While recent research in human and labour geography on labour law and the state have emphasised its contingent, topological and site‐based nature I argue: (i) that this case reflects how Canadian unions became deeply embedded in post‐war hegemonic splicings of law and space and the state’s role in the reproduction of the wage‐labour relation and (ii) while the HEU’s struggles and the use of international law contest such splicings, these are still sharply inflected by existing nation‐state legal systems that remain both relatively resilient and ambivalent about labour rights. The HEU case thus reveals that scaling up by law may not protect worker interests if labour is otherwise weak.

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Section: Labour Geography the State And Labour Lawmentioning

confidence: 99%

Section: Labour Geography the State And Labour Lawmentioning

confidence: 99%

Section: Legal Rescalings? the Heu And The Fight Against Bc’s Bill 29mentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

See 3 more Smart Citations

Scaling up by law? Canadian labour law, the nation‐state and the case of the British Columbia Health Employees Union

Rutherford¹

2012

Trans Inst British Geog

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Canada

McEvoy¹

2019

Ius Comparatum - Global Studies in Comparative Law

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Constitutionalism and Anti-Privatisation Strikes: Introducing an Eclectic Model

Litor

2019

Isr. law rev.

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The rise of neoliberal agendas of political actors and a wave of privatisation in the globalisation era have often been followed by anti-privatisation strikes. These are union strikes against the privatisation process and against contracting out and opening markets to competition. The article presents the distinction between different versions of constitutionalism regarding anti-privatisation strikes. It discusses two approaches to constitutionalism – the economic approach and the collective approach – and their manifestation in the case law of Israel and the United Kingdom.The collective approach suggests the recognition of a constitutional status of collective rights as a basis for counter-balancing the neoliberal practices of regulators and political actors. Following the effects of liberalisation on the labour market – both in influencing union organisational capacity and in weakening job security of individual employees, the collective approach is aimed at protecting employees’ rights in a globalised-privatised era. Within the collective approach, constitutionalism is used as a basis for recognising anti-privatisation strikes. In contrast, the economic approach denies the existence of a constitutional right to strike against privatisation.The article presents an eclectic model which merges the two approaches, and advocates its adoption. Drawing on New Institutional Economics, the eclectic model offers a theory for moderating the constitutionalism practice and developing partial and restrained constitutionalism. It proposes the adoption of a constitutional right to strike against privatisation, when its application reduces transaction costs and advances efficiency and economic goals for the benefit of the public.

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The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond

Cited by 18 publications

References 4 publications

Scaling up by law? Canadian labour law, the nation‐state and the case of the British Columbia Health Employees Union

Scaling up by law? Canadian labour law, the nation‐state and the case of the British Columbia Health Employees Union

Canada

Constitutionalism and Anti-Privatisation Strikes: Introducing an Eclectic Model

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