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Putting the Charter to Work

Putting the Charter to Work: Designing a Constitutional Labour Code

Copyright Date: 1987
Pages: 265
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  • Book Info
    Putting the Charter to Work
    Book Description:

    Rather than considering the relationship between the three branches of government in the abstract, Beatty focuses on legal practice as it functions in labour law, and shows how the Charter could be used both to reform labour law and to protect against attempts to reverse gains made in labour legislation in the past. Beatty's critical analysis rests on two principles: that the Charter provides equal liberty for all workers to participate in determining the conditions that govern their working life, and that fundamental rights should be limited only by laws employing the least repressibe alternative. These principles are applied to the constitutional validity of rules that prohibit discrimination: those requiring payment of minimum wages, excluding groups from collective bargaining laws, mandating retirment at a specific age, and requiring membership in trade unions. Beatty argues that the current model of collective bargaining cannot be constitutionally sustained and that voluntary and/or plural representation of employee interests is more compatible with the Charter.

    eISBN: 978-0-7735-6135-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-2)
  4. Introduction: Law, Politics, and the Least Advantaged
    (pp. 3-12)

    The practical purpose of this study is to explore, in a preliminary way, the impact of the Charter of Rights and Freedoms on the laws that govern people’s relations at the places they are employed to work.¹ My objective is to develop and apply a principled method of analysis which will assist citizens and courts to formulate and then test the laws that regulate people’s behaviour at work against the new constitutional constraints embodied in the Charter.

    The method of analysis I develop is rooted in principles formulated to recognize the equal right of every person to choose and pursue...


    • ONE A Purposive Interpretation of Work
      (pp. 15-20)

      To assess the rationality and integrity – that is, the constitutionality¹ – of any legal regime, liberals, logicians, and lawyers all recognize the necessity of having a clear understanding of the purposes of the activity or behaviour being regulated or the good being distributed.² Any evaluation of a legal system, such as our labour relations laws, presupposes a set of objectives which that law is expected to facilitate. Commonly, there are a variety of purposes, often in competition with one another, which the law is required to reconcile. In the case of working, one can identify two broad constituencies whose...

    • TWO Labour Relations Laws: Pre-Industrial Society
      (pp. 21-30)

      Given the significance of work for the human condition, it would be difficult to exaggerate the importance of the legal code which is designed to regulate it. Every labour code will strike some balance between the various objectives which are pursued in the workplace. Depending on the legal rules that make up the code, the balance will shift in favour of one purpose or interest or another. In this and the next two sections I want to inquire into the extent to which our own legal institutions, processes, and rules have facilitated or impeded the realization of the personal objectives...

    • THREE Labour Relations Laws: Industrial Society
      (pp. 31-40)

      When one turns to the labour code of industrialized England, it is clear that virtually all of the social phenomena present in pre-industrial England underwent radical change.¹ In the first place, the demographic circumstances of the two societies were exactly the opposite. By comparison with its mercantile and feudal ancestors, the population base of industrial England expanded dramatically. What had been a scarcity of labour became a surplus through both natural increase and the influx of Irish immigration.² The excess supply of labour created circumstances whereby the social interest in employing and consuming the services and products of workers on...

    • FOUR Labour Relations Laws: Post-Industrial Society
      (pp. 41-46)

      Since the turn of the century, the scope and substance of labour law has changed dramatically. As the working classes have been able to participate more fully and effectively in the democratic processes of government, they have used that opportunity to secure legislation much more favourable to their interests.¹ In the last eighty years, English, Canadian, and American societies all have increasingly returned to the legislative instrument to regulate the relations of people at work and to limit, though not eliminate, the sovereign authority the consumer wields in the marketplace. In both volume and detail the regulation of work by...


    • FIVE Law, Politics, and the Least Advantaged
      (pp. 49-55)

      This is an appropriate place to pause and survey the path we have travelled. As one reflects on the past six hundred years of work regulation, there are three characteristics which stand out. Unquestionably the most striking feature of the legal regulation of work activities is the virtually uninterrupted commitment of successive societies to subject this vital form of human behaviour to detailed social regulation. At no time during this chronology have labour relationships been governed exclusively by rules and regulations settled by the persons who are parties to the relationship. Rather, the balance that was eventually struck between the...

    • SIX Interpreting the Charter: Two Principles of Judicial Review
      (pp. 56-72)

      If we apply a strategy of caution and conservatism to the project at hand, we would be safe grounding our analysis on the assumption that the basic focus of an entrenched bill of rights is to constrain the powers of the legislative branch of government. Constitutional theorists of virtually every stripe perceive the Charter as providing, at a minimum, some check on the will of the majority, acting through its elected representatives, to accomplish whatever social objectives it wants to pursue. It is, to some degree, a limitation on what otherwise would be (and until now has been) the absolute...


    • SEVEN Equal Opportunity
      (pp. 75-79)

      We will begin our analysis of the constitutional validity of our labour code by focusing on the least problematic rules we use to regulate employment relationships. There are a variety of rules one might select, but the one I think most people support as enthusiastically as any is that which outlaws most forms of arbitrary and invidious discrimination. Although, paradoxically, these human rights or fair employment laws are of relatively recent origin,¹ insofar as they insist that every person qualified for a position must have an equal opportunity to be hired in, promoted to, and treated with concern and respect...

    • EIGHT Economic Security
      (pp. 80-88)

      Being able to justify equal opportunity laws is an important, though hardly difficult, test for our principles. This is not the type of social initiative which is at the centre of the controversy about the appropriate balance that our labour code ought to effect. A slightly more rigorous test is to see how our two principles would figure in a challenge to the constitutionality of those laws which govern minimum wages, maximum hours, and employment standards. These laws are very much part of the current debate and are frequently cited as showing how the pendulum has swung too far in...

    • NINE Occupational Discrimination
      (pp. 89-93)

      The most straightforward situation in which the judicial branch can secure a measure of social justice on its own is when it aims the Charter at social policies that endorse what might be called occupational discrimination.¹ Take the case of agricultural workers, who are among the most economically exploited and politically neutralized individuals in our society. Because they are heavily drawn from a migrant and immigrant population, these workers face even more serious obstacles to effective participation in the political process. Typically, these workers have not been covered by many of the most important parts of our labour code, including...

    • TEN Age Discrimination
      (pp. 94-105)

      Let us now consider those rules in our labour code which purport to distribute benefits or impose burdens on the basis of a person’s age. To take a topical example, we can focus on the legitimacy of those rules and regulations which compel people to retire involuntarily and simply on account of the number of years they have lived. Whether it is proper to distinguish between people in this way is a good test for our rules of judicial review. Because it is not associated with past discrimination against a particular group,¹ and because the number of people affected by...

    • ELEVEN Sex Discrimination
      (pp. 106-115)

      Women are perhaps the most visible and vocal group of workers looking to the Charter and the process of judicial review to remedy injustices which they believe can be traced to their relatively disadvantaged position in the political process. Female workers have been quite clear about their intention to require our legislators to be a good deal more sophisticated and sensitive in their reliance on immutable characteristics such as a person’s sex in the enactment of laws regulating work relations.¹ It is not my intention to review, let alone resolve, all of the ways in which the Charter will advance...

    • TWELVE Rules of Collective Decision-Making: Compulsory Union Membership
      (pp. 116-132)

      We have now spent a considerable time sifting evidence for the thesis that, with the Charter as their mandate, the courts can be enlisted in aid of the least powerful in our community. And so far we have kept to our commitment of proceeding with an interpretation of the Charter which is both cautious and uncontentious in the relationship it envisages between the courts and the other two branches of government as well as in the principles of justice it applies. If the analysis is open to criticism, most likely the charge would be that the conclusions we have derived...


    • THIRTEEN A Constitutional Conversation: The Challenge
      (pp. 135-155)

      The principle of exclusive representation, it will be recalled, stipulates that whenever a majority of a group of workers which is appropriate to associate together for collective bargaining purposes chooses a union to represent them, that union becomes the exclusive bargaining agent for all the workers in the group. By virtue of this principle, it is unlawful for an employer to negotiate with any other union, association, or individual unless the union so certified consents to such arrangements. All dealings between an employer and employee in all aspects of their relationship – in the bargaining for as well as in...

    • FOURTEEN A Constitutional Conversation: The Defence
      (pp. 156-179)

      Faced with such a challenge to this cornerstone of our current system of collective bargaining, defenders of the principle of exclusivity have two independent though related strategies they can fall back on to try to salvage their position. Both question the assumption, which is implicit in the argument we have advanced so far, that the European models in general and the West German works council in particular are suitable alternatives for legislators in Canada in designing systems of collective labour relations.

      According to the first argument, systems of industrial relations are the product of the unique social, economic, and cultural...

  9. Postscript
    (pp. 180-184)

    We have followed this conversation concerning the constitutional validity of our system of collective labour relations in general and its principle of employee representation in particular about as far as we can. Even though we have not particularized the institutional design which a revitalized system of collective bargaining would take, we have come far enough to allow us to bring our inquiry to a close. With our assessment of the exclusivity rule, we have reached a stage where it can, I think, be said that we have realized the objectives we set for ourselves at the beginning of this project....

  10. Notes
    (pp. 185-246)
  11. Index
    (pp. 247-252)