Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality
This paper has three goals. First, it attempts to understand how the Supreme Court conceptualizes the constitutionally protected right to bargain collectively in B.C. Health Services. It concludes that the Court has adopted a purely formal or procedural approach to collective bargaining. Although th...
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ftkentuniv:oai:kar.kent.ac.uk:35278 2023-05-15T17:21:33+02:00 Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality Fudge, Judy 2008 https://kar.kent.ac.uk/35278/ https://doi.org/10.2139/ssrn.1326710 unknown Osgoode Fudge, Judy (2008) Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality. Supreme Court of Canada Law Review, 42 . pp. 213-247. ISSN 0228-0108. (doi:10.2139/ssrn.1326710 <https://doi.org/10.2139/ssrn.1326710>) (The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided) (KAR id:35278 </35278>) K Law Article PeerReviewed 2008 ftkentuniv https://doi.org/10.2139/ssrn.1326710 2023-03-12T19:01:35Z This paper has three goals. First, it attempts to understand how the Supreme Court conceptualizes the constitutionally protected right to bargain collectively in B.C. Health Services. It concludes that the Court has adopted a purely formal or procedural approach to collective bargaining. Although this conception may promote democratic deliberation by requiring governments to consult with the unions representing government employees who will be adversely affected by legislation that interferes with collective agreements, the paper concludes that it is disconnected from a broader, deeper and more secure normative base upon which to ground labour rights. Second, the paper argues that the Supreme Court’s dismissive treatment of the equality argument in the B.C. Health Services case is not only inconsistent with its decision in Newfoundland (Treasury Board) v. Newfoundland Assn. of Public Employees (NAPE), it both reflects and promotes an idea of equality that is directed at fighting stereotypes to the exclusion of fostering substantive equality. Third, the paper suggests that constitutional litigation in the labour context supports and reinforces partisan politics by promoting a form of aggressive adversarialism that is antithetical to a principled approach to developing labour policy for an economy for which the prevailing form of industrial pluralist labour law no longer fits. Article in Journal/Newspaper Newfoundland University of Kent: KAR - Kent Academic Repository SSRN Electronic Journal |
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K Law |
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K Law Fudge, Judy Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
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K Law |
description |
This paper has three goals. First, it attempts to understand how the Supreme Court conceptualizes the constitutionally protected right to bargain collectively in B.C. Health Services. It concludes that the Court has adopted a purely formal or procedural approach to collective bargaining. Although this conception may promote democratic deliberation by requiring governments to consult with the unions representing government employees who will be adversely affected by legislation that interferes with collective agreements, the paper concludes that it is disconnected from a broader, deeper and more secure normative base upon which to ground labour rights. Second, the paper argues that the Supreme Court’s dismissive treatment of the equality argument in the B.C. Health Services case is not only inconsistent with its decision in Newfoundland (Treasury Board) v. Newfoundland Assn. of Public Employees (NAPE), it both reflects and promotes an idea of equality that is directed at fighting stereotypes to the exclusion of fostering substantive equality. Third, the paper suggests that constitutional litigation in the labour context supports and reinforces partisan politics by promoting a form of aggressive adversarialism that is antithetical to a principled approach to developing labour policy for an economy for which the prevailing form of industrial pluralist labour law no longer fits. |
format |
Article in Journal/Newspaper |
author |
Fudge, Judy |
author_facet |
Fudge, Judy |
author_sort |
Fudge, Judy |
title |
Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
title_short |
Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
title_full |
Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
title_fullStr |
Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
title_full_unstemmed |
Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
title_sort |
conceptualizing collective bargaining under the charter: the enduring problem of substantive equality |
publisher |
Osgoode |
publishDate |
2008 |
url |
https://kar.kent.ac.uk/35278/ https://doi.org/10.2139/ssrn.1326710 |
genre |
Newfoundland |
genre_facet |
Newfoundland |
op_relation |
Fudge, Judy (2008) Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality. Supreme Court of Canada Law Review, 42 . pp. 213-247. ISSN 0228-0108. (doi:10.2139/ssrn.1326710 <https://doi.org/10.2139/ssrn.1326710>) (The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided) (KAR id:35278 </35278>) |
op_doi |
https://doi.org/10.2139/ssrn.1326710 |
container_title |
SSRN Electronic Journal |
_version_ |
1766106526051729408 |