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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ftyorkunivohls:oai:digitalcommons.osgoode.yorku.ca:sclr-1155 2023-08-15T12:42:14+02:00 Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality Fudge, Judy 2008-01-01T08:00:00Z application/pdf https://digitalcommons.osgoode.yorku.ca/sclr/vol42/iss1/9 https://doi.org/10.60082/2563-8505.1155 https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1155/viewcontent/34850_36926_1_SM.pdf unknown Osgoode Digital Commons https://digitalcommons.osgoode.yorku.ca/sclr/vol42/iss1/9 doi:10.60082/2563-8505.1155 https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1155/viewcontent/34850_36926_1_SM.pdf http://creativecommons.org/licenses/by-nc-nd/4.0/ The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference text 2008 ftyorkunivohls https://doi.org/10.60082/2563-8505.1155 2023-07-22T23:05:46Z 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. Text Newfoundland York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 42 1 |
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York University Toronto, Osgoode Hall Law School: Osgoode Digital Commons |
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ftyorkunivohls |
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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 |
Text |
author |
Fudge, Judy |
spellingShingle |
Fudge, Judy Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality |
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 Digital Commons |
publishDate |
2008 |
url |
https://digitalcommons.osgoode.yorku.ca/sclr/vol42/iss1/9 https://doi.org/10.60082/2563-8505.1155 https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1155/viewcontent/34850_36926_1_SM.pdf |
genre |
Newfoundland |
genre_facet |
Newfoundland |
op_source |
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference |
op_relation |
https://digitalcommons.osgoode.yorku.ca/sclr/vol42/iss1/9 doi:10.60082/2563-8505.1155 https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1155/viewcontent/34850_36926_1_SM.pdf |
op_rights |
http://creativecommons.org/licenses/by-nc-nd/4.0/ |
op_doi |
https://doi.org/10.60082/2563-8505.1155 |
container_title |
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference |
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42 |
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1 |
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