Reflecting Back On The Future of Labour Law

Reflecting Back on the Future of Labour Law
University of Toronto Law Journal | 2021 | 71 U. Toronto L.J. 165 | David J Doorey
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Reflecting Back on the Future of Labour Law, 71 U. Toronto L.J. 165
71 U. Toronto L.J. 165
University of Toronto Law Journal

Spring, 2021
Article
Reflecting Back on the Future of Labour Law d1
David J Doorey a1
Copyright © 2021 by University of Toronto Press; David J Doorey
The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral
collective bargaining or some other dramatic new system to replace the Wagner model which has governed since the 1940s.
Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two
important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and
the intersection between the US and Canadian versions of the Wagner model. Weiler's vision of a hybrid Wagner model that
drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may
be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on
the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that
would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of
individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada
wholly rejected Beatty's normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence
since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is
therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with
some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago.
Keywords: Charter, comparative law, freedom of association, labour law, legal history
I Introduction
In 1984, Harry Arthurs, the dean of Canadian labour law, gave a speech about the past and future of collective bargaining law
and industrial relations (IR). 1 He reflected on the 1969 Woods Task Force, how it was a testament to its time, and how the
people involved, himself included, could be excused for believing that Canadian IR had matured to a point where there was
mutual acceptance and *166 respect between employers and unions and widespread agreement that collective bargaining was
good for the economy and society. 2 The task force concluded that the Wagner model of collective bargaining, which by then
had dominated Canadian collective bargaining policy for a quarter century, functioned well enough, and no serious reforms or
alternatives to it were proposed. 3
In his speech, Arthurs lamented how the task force members had not foreseen the dark clouds on the horizon that would
soon erode management tolerance for collective bargaining 4 and undermine labour solidarity and ‘labour’ as a meaningful
category. 5 Just over a decade later, Arthurs would declare that industrial pluralism, in general, and the Wagner model of
collective bargaining, in particular, were failed projects that would never fulfil their promise to bring democracy, voice, and
justice to the workplaces of the masses and the particularly vulnerable. 6 By the late 1990s, Harry Arthurs, Canada's most
prominent industrial pluralist, had concluded that it was time to look elsewhere. Moving forward, Arthurs's labour law work
focused primarily on possible futures for law's interaction with work after the Wagner model's imprint had faded from the
law books. 7
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Around the time that Arthurs was giving his speech in the mid-1980s, two debates preoccupied much of the Canadian labour
law academy. The first focused on comparative labour law and the failing National Labor Relations Act (NLRA) in the United
States. 8 The percentage of workers covered by collective bargaining there had plummeted over the period of a generation.
This debate was led by a star former student of Arthurs, Paul Weiler, who had served as a labour law professor alongside
Arthurs at Osgoode Hall Law School before leaving to help draft British Columbia's Labour Relations Code and then chair
British Columbia's Labour Relations Board in the late 1970s. 9 In 1978, Weiler joined Harvard Law School, where he quickly
surveyed the sorry state of American collective *167 bargaining. 10 In several influential publications, Weiler argued that
rapidly declining collective bargaining levels in the United States could be explained to a large extent by poorly designed labour
laws that made it all but impossible for workers to access collective bargaining and by the law's unitary focus on one form
of collective bargaining: enterprise-based, majority, exclusive trade union collective bargaining under the Wagner model. 11
He proposed a sort of hybrid Wagner model that combined features of the Canadian and US models as a means of restoring
access to collective voice for US workers.
The second debate engaged almost every labour law scholar in Canada and explored the potential impact of the newly enacted
Canadian Charter of Rights and Freedoms (Charter). 12 Another former student of Arthurs starred in this debate alongside
Arthurs and Weiler: University of Toronto labour and constitutional law professor David Beatty. Beatty predicted that the
Charter would lead ultimately to a redesign of Canadian labour law that would benefit all workers but, especially, Canada's
most disadvantaged workers. 13 In particular, Beatty believed that the Charter would initiate a policy ‘conversation’ about the
failings of the Wagner model that would lead to the model's dismantling and direct lawmakers' attention to alternative models
of collective bargaining that better protected the individual liberty of workers to decide if and through what vehicle they would
act collectively. Almost everyone else engaged in this debate disagreed, and, by the early 1990s, it seemed clear that Beatty was
on the losing side of the debate. In a flurry of decisions released between 1987 and 1992, the Supreme Court of Canada (SCC)
undermined Beatty's predictions about the emancipating potential of the Charter in labour law by reading down the Charter's
guarantee of freedom of association (FOA), rendering it largely an empty vessel for workers. Labour law scholars moved on
from the Charter, content that there was nothing to see there from a labour law perspective.
However, beginning with its 2001 decision in Dunmore v Ontario that the exclusion of agricultural workers from the Ontario
Labour Relations Act (OLRA) *168 violated FOA, as guaranteed by section 2(d) of the Charter, the SCC embarked on a
remarkable fifteen-year odyssey in which it rewrote Charter jurisprudence and thereby awakened the labour law community
from its long Charter slumber. 14 The 1980s debates on the subject were suddenly relevant again, and past declarations of the
victors and losers now seemed premature. We had only reached half-time in the game, and the end result was far from clear.
Charter ‘sceptics,’ whose predictions that the SCC would fail to apply the Charter in ways that aided vulnerable workers and
promoted collective bargaining appeared so prescient in the 1990s, were by the 2010s issuing mea culpas. Arthurs, a leading
Charter sceptic in the 1980s, conceded in 2016 that the ‘idealists were right ... and we skeptics were wrong.’ 15
David Beatty was the face of the ‘idealist’ camp. It is no doubt overstating the point to proclaim that Beatty was ‘right’; with
the odd exception, such as in Dunmore, the SCC's reasoning has rarely aligned with Beatty arguments. In contrast to Beatty's
bold and brave predictions to the contrary, the SCC has stamped its approval on the Wagner model. Arthurs's point is not that
Beatty's arguments were correct but, rather, that the SCC's twenty-first-century decisions recognizing constitutional rights to
collective bargaining and to strike, among other wins for employees and unions, belied the sceptics' earlier claims that the SCC
would never use the Charter to advance labour rights. At the same time, Beatty's prediction that the Charter would eventually
initiate a policy ‘conversation’ about the future of the Wagner model in Canada has certainly proven to be accurate. That time
is upon us. And, as this conversation advances, it may yet come to pass that Beatty's vision of a post-Wagner model landscape
turns out to be more prescient than most of his contemporaries believed.
This article takes up Arthurs's challenge to look elsewhere in imagining a future of Canadian labour law by looking backwards
for lessons foreshadowed in the two big labour law debates of the 1980s. 16 In particular, the article argues that a close rereading
of the works of Weiler and Beatty during that period suggests important insights into the challenges that intrigue Canadian
labour law scholars today. Central among these challenges is the question of how to extend collective bargaining policy to the
millions of precariously employed Canadians who are unlikely to ever benefit from the Wagner model of majority, exclusive
trade union bargaining. There is much discussion today in labour law circles about the need to move beyond the Wagner
model of enterprise-based bargaining towards *169 broader-based collective bargaining schemes, such as sectoral bargaining.
However, this article argues that labour law reform is unlikely to come by means of a sudden legislative tsunami that sweeps
away nearly eighty years of Wagner model practice and memory and replaces it with something entirely different. There are
too many institutional and political obstacles that will prevent fundamental reform of that nature. The Wagner model in some
form will remain on the books in Canada for years to come, even if its direct impact on the lives of working people is more
imaginary than real.
Change is likely to come initially in the form of a series of smaller foreshocks that will disturb the Wagner model and the
places around it while leaving this model mostly intact. My assertion is that clues as to what those foreshocks might look like
can be found in the 1980s debates because those debates concerned two important forces likely to influence the future direction
of Canadian collective bargaining policy: (a) the scope and substance of FOA recognized under the Charter and (b) lessons
drawn from US experience, where the crisis of collective representation at work under their version of the Wagner model, and
responses to that crisis, have much deeper roots. Although Weiler and Beatty were interested in empowering workers through
collective bargaining, there is no guarantee that the coming foreshocks to Canadian labour law will be driven by that objective
or achieve that result. There are forces moving us closer to a post-Wagner model world in Canadian collective bargaining, but
where those forces will lead remains far from certain.
II The first big debate: Paul Weiler and comparative labour law
In 1984, Weiler published his famous Harvard Law Review article ‘Promises to Keep: Securing Workers' Rights to Self-
Organization under the NLRA.’ 17 This article, and his 1990 book Governing the Workplace: The Future of Labor and
Employment Law, influenced a generation of US labour law scholars and policy thinkers. 18 In the early 1980s, private sector
union density in the United States sat near 15 per cent, down from about 40 per cent in the mid-1950s. Weiler predicted, correctly
as it turned out, that union density would fall below 10 per cent by the turn of the century. 19 He was writing at a moment
when labour law and collective bargaining as an institution were widely regarded to be in crisis in the United States. From his
Cambridge office, Weiler witnessed hostile resistance to collective bargaining by US employers and an enfeebled legal model
that could do little about it.
Weiler's mission was to restore access to worker voice through collective bargaining. His thesis was straightforward. Aided by
a powerful chart, he argued that much of the problem of declining collective bargaining coverage in the United States could be
attributed to poorly designed labour laws (see Figure 1). *170 Weiler proposed a series of Canadian-inspired reforms to the
NLRA. His proposals fell into two basic categories: (a) reforms to improve the functioning of the traditional Wagner model
of majority/exclusive trade union collective bargaining (the ‘reconstructive model’) and (b) reforms to create alternative forms
of collective voice to complement the Wagner model in workplaces where no majority union was certified (the ‘constitutive
model’). In terms of the former strategy, Weiler emphasized reforms that would make it easier for workers to unionize
and bargain effective collective agreements once certified. This meant limiting employers' opportunity to campaign against
unionization through both lawful and unlawful means. He proposed Canadian-style ‘instant certification ballots' to test employee
wishes about unionization to replace the existing NLRA model that permitted employers to stall the taking of a mandatory
certification ballot for months. 20 To provide workers with greater collective bargaining power, Weiler argued that the right of
employers to permanently replace striking *171 workers should be rejected and replaced with a job guarantee for the first six
months of a work stoppage, which was the law in Ontario. 21 Weiler argued as well for a broader right of workers to engage in
secondary picketing in the United States, arguing that the existing law's prohibition on ‘secondary boycotts' - striking workers
picketing a third-party business that conducts business with the struck employer - was overly broad and slanted the balance of
power too far in the struck employer's favour. 22
Image 1 within document in PDF format.
FIGURE 1. Chart from Paul Weiler, ‘Promises to Keep: Securing Workers' Rights to Self-Organization under the NLRA’ (1983)
96 Harv L Rev 1769 at 1772.
In terms of the second category of reforms - expanding collective voice options outside of the Wagner model - Weiler
emphasized that ‘the primary aim of the law must be to satisfy the employee need for meaningful protection and participation
in the workplace, rather than simply to preserve the institutional formats through which those functions have traditionally been
performed.’ 23 This was a warning against those who would insist that the only acceptable form of collective representation in
the workplace was full-fledged, Wagner-style majority, exclusive trade unionism. Weiler saw the writing on the wall. He knew
that very few US workers would ever be able to access collective bargaining under the Wagner model, even in the unlikely
event that his reconstructive reforms were enacted. The time had come to consider alternative models of collective voice, not
to replace the Wagner model but, rather, to complement it when workers were either unable to access it or uninterested in
doing so. The law should ‘guarantee to all employees ... easy access to a basic level of internal participation in a specified range
of decisions in all enterprises.’ 24
Referencing work by Canadian scholars Roy Adams and David Beatty, Weiler advocated for mandatory ‘employee participation
committees' (EPCs), which were designed loosely on the German works council model and on joint health and safety
committees, an innovation that had recently been introduced in some Canadian provinces. 25 Employees would elect their
representatives on the EPCs, and employers would be required to finance and inform and dialogue with the *172 EPCs
over a range of employment- and business-related matters related to the performance and financial situation of the firm. 26
Weiler advocated experimentation with different forms of non-union employee representation alongside traditional Wagner-
style majority trade unionism,
not on the assumption that this type of worker participation is on par with full-blown union representation, ... but because this
kind of worker involvement is an attractive option to numerous non-union firms and their employees, it does no harm to anyone
else, and the law should not use its limited resources to stamp the practice out. 27
He knew that in Canadian labour law non-union employee associations, even ones with employer support, were not unlawful
per se. Rather, they were permitted so long as the employer did not create an association as a union avoidance scheme during an
organizing campaign by an independent trade union. Existing unfair labour practice provisions in the NLRA would be sufficient
to capture an employer that behaves in this manner, as they were in Canada. 28
Weiler recognized that EPCs would encounter practical barriers in terms of power and resources to stand up to employers in the
manner of real unions. However, and this point is important for our discussion, US law already included an important weapon
for non-union workers not available in Canada. Section 7 of the NLRA protects a right of employees to engage in ‘concerted
activities for mutual aid and protection,’ which includes a limited right to strike for non-union and union employees alike. 29 If
his proposed restrictions on the right of employers to terminate strikers were instituted, Weiler noted, non-union workers who
were unhappy with their employer's response to the new EWCs could then strike: ‘Those employees would still enjoy precisely
the same right to strike under section 7 of the NLRA - to take concerted action ... for their mutual aid or protection - as is now
used by union members engaged in collective bargaining.’ 30 *173 If the prospect of striking without the protection of a union
proved too daunting, then the workers might be tempted to join a real majority union:
The immediate rejoinder, of course, is that a small group of non-union workers with the limited resources and lack of tradition
of an EPC would probably be too timid and inhibited to actually exercise the legal right to strike without the backing and
support of a large union. But if it is the case, as I am sure it usually would be, that the purely persuasive efforts of the EPC
were not sufficient to move the employer to improve working conditions, then that is a reason for these employees to exercise
their further section 7 right - to join a real union. 31
In the 1980s, relatively few non-union workers exercised NLRA section 7 rights to strike and act collectively at work, but
Weiler anticipated that there would come a time in the near future when hardly any US workers would be covered by traditional
Wagner-style trade unionism. When that time came, the application of section 7 to non-union workers and workplaces would
become crucial to the task of protecting some form of collective voice at work.
To summarize, Weiler proposed a hybrid Wagner model that combined features of the US and Canadian systems. He drew on
Canadian experience in proposing a series of reforms that would improve access to full-fledged Wagner model-style collective
bargaining for employees who wanted that, while simultaneously advocating the development of new forms of collective voice
to complement that model for the millions of US workers who would probably always remain outside that model. Labour
law needed to facilitate worker voice through mandatory joint committees that complement full-fledged majority trade unions
and support worker militancy by ensuring that workers who do not have the protection of a trade union nevertheless can act
collectively without fear of reprisals.
Of course, none of Weiler's proposed reforms came to pass. 32 In fact, things have gotten much worse in the United States,
from a labour law perspective, since Weiler wrote his influential comparative law pieces. Private sector union density fell to a
startling 6.2 per cent in 2019, and unions have all but abandoned the NRLA certification model in favour of alternative forms of
self-help collective pressure and voluntary recognition. 33 Since the 1980s, the number of ‘right-to-work’ states that ban union
security clauses has increased to twenty-seven, including northern industrial states like Michigan, Indiana, and Wisconsin. And
a deeply divided US Supreme Court ruled last year in *174 Janus v American Federation of State, County, and Municipal
Employees, Council 31 that employees in the public sector must opt into the payment of union dues, effectively rendering the
entire US public sector's ‘right to work.’ 34
US labour law scholars today remain interested in the ‘reconstructive’ reforms to the Wagner model introduced by Weiler,
but there is also greater awareness that tinkering with this model will be insufficient to extend collective bargaining to most
Americans. 35 An updated and revised version of Weiler's chart helps demonstrate why (see Figure 2). Despite more favourable
labour laws, private sector union density in Canada has followed a similar downward trajectory since the 1980s. Canadian
private sector union density in 2019, at about 15 per cent, approximates US levels when Weiler wrote Promises to Keep, and
there is good reason to believe that Canada is looking similarly at union density falling below *175 10 per cent in the near
future. 36 It is not surprising therefore that in Canada, as in the United States, reform proposals today are concentrating more
fundamentally on what comes next after the Wagner model rather than on how to tinker with that model. More on this idea later.
Image 2 within document in PDF format.
FIGURE 2. Private Sector Union Density, 1984-2017 (Canada and United States)
III The second big debate: David Beatty and the potential impact of the Charter on labour law
The second big debate that transfixed labour law scholars in the 1980s concerned the potential impacts on labour law of the
newly enacted Canadian Charter of Rights and Freedoms. This debate engaged almost every labour law scholar in Canada,
including Arthurs, Weiler, and Beatty. The academic literature of the time pigeon-holed commentators into three general camps
with the following labels:
a. the ‘sceptics' (or realists), starring Harry Arthurs;
b. the ‘romantic liberals,’ starring David Beatty; and
c. the ‘pragmatic pluralists,’ starring Paul Weiler. 37
Arthurs was a leading Charter sceptic. Sceptics like Arthurs argued that the courts have been screwing over workers for so
long that only a naïve dreamer would believe that they would suddenly use their newly found power of constitutional judicial
review to chart a progressive way forward for workers. 38 The sceptic attitude was captured in this oft-cited passage by Arthurs:
‘Anglo-Canadian courts have been dealing *176 with issues of individual and collective labour law for at least two hundred
years. During that entire period, the courts virtually never, not on any given occasion, created a right which might be asserted
by or on behalf of working people .... Nor, I conclude, is it likely that they ever will.’ 39 Sceptics cautioned against attempting
to use the Charter proactively to advance workers' rights, fearing it would backfire.
Weiler led the pragmatic pluralists camp, which shared the sceptics' concerns about the historical record of judges. 40 However,
more so than the sceptics, they were prepared to give judges the benefit of the doubt. They doubted that the Charter would
be used as a weapon to trample upon vulnerable workers and workers' rights and argued that judges would ‘muddle through
on a case-by-case basis,’ shy away from activism, and mostly defer to legislatures, but intervene if they believed the state had
clearly overreached. 41 Weiler not only argued that the Charter offered a ‘potentially valuable restraint on politicians who may
be tempted to appeal to popular emotions to try and win elections by enacting laws that deny fundamental rights of a minority’
but also doubted that the Charter would ultimately reshape the law of work and argued that it should not. 42
A BEATTY: PUTTING THE CHARTER TO WORK
Beatty was the leading (arguably only) voice in the romantic liberal camp back in the 1980s. 43 In a series of publications,
including his book Putting the Charter to Work: Designing a Constitutional Labour Code, Beatty argued that the Charter would,
and should, lead to a fundamental redesign of the Canadian Wagner model and of equality rights at work. 44 Beatty envisaged
the Charter ushering in a more just labour market that better protected the least advantaged Canadian workers. Properly applied,
the Charter would lead to the dismantling of the foundational principles of majoritarianism and exclusivity upon which the
Wagner model rests and which Beatty claimed do ‘fundamental violence to a person's freedom to associate only with those
persons in the enterprise with whom he chooses to join.’ 45 Only by abandoning the concepts of majoritarianism and exclusivity
could *177 labour law finally offer all workers meaningful access to collective bargaining. 46 Once the Charter had disposed
of exclusivity and majoritarianism, a new, more liberal model would emerge constructed upon the Charter's promise of ‘equality
of liberty.’ 47 In the context of collective work relations, this meant a model that better protected the individual freedom to
choose whether to act collectively with coworkers and, if so, through what means. 48
The Wagner model of FOA fails to protect both positive and negative FOA. 49 It fails to protect positive FOA because it
excludes the majority of Canadian workers, both by expressed law in the case of the many statutory exclusions (agricultural
and domestic workers, among other excluded occupations), and in practice, by creating insurmountable obstacles to achieving
the majority, exclusive trade unionism that the Wagner model requires as a precondition for the practical exercise of collective
bargaining and the right to strike. The model fails to protect negative FOA because it compels employees to support a single
union preferred by a majority of workers as a condition of participating in collective bargaining. Beatty argued that ‘freedom
“of” association must necessarily imply freedom “from” compulsory membership as well.’ 50 The negative FOA puts a variety
of features associated with the Wagner model in the cross-hairs, including the principle of exclusivity as well as union security
provisions that require workers to join specific unions (closed shop and union shop) and pay union dues toward union activities
unrelated to collective industrial governance. 51
The policy objectives of the Wagner model - elevating bargaining power and promoting worker solidarity - were worthy
of Charter protection, but Beatty argued *178 that exclusivity would be struck down because it infringes upon FOA and is
not the least intrusive means of achieving those objectives. Beatty pointed to European systems of ‘plural’ and ‘voluntary’
collective representation as examples of alterative models that similarly advance worker solidarity and bargaining power but
that compromise workers' FOA (including the negative freedom) less than the Wagner model. In these alternative models,
workers have greater choice as to which employee associations to join, or not join, and, at least in the case of voluntary systems,
a means to participate in collective decisions regardless of their union status. 52
Beatty was not suggesting that in a post-Charter era the Wagner model would suddenly be supplanted with one of the European
models. He recognized that ‘it would be foolish to think a whole system of collective labour relations would be able to survive
a complete transplantation and remain unaffected by local environments.’ 53 Nor did Beatty fully particularize any specific
‘institutional design’ that he believed would ultimately evolve in the post-Charter era. 54 His objective was to explain how the
Wagner model was inconsistent with the Charter and to then demonstrate in broad strokes what sorts of qualities would be
required in a new Charter-compliant labour code. Beatty argued that the Charter would initiate a ‘conversation’ about collective
bargaining policy that ultimately would result in the liberalization of the Wagner model and the evolution of a new labour code
informed by the need to protect individual liberty. The European models of voluntary or plural collective bargaining provided
examples upon which to build. 55
A new Charter-compliant model would redress two central failings of the Wagner model. First, it would end arbitrary statutory
exclusions that carve out large swathes of workers from protective collective bargaining legislation. Those exclusions could not
be sustained under the Charter. Second, it would protect a greater range of options through which workers could participate in
collective decision making at work that were not conditioned upon a majority of employees joining a single trade union. Beatty
offered up as a possibility some version of the German ‘works council’ model, which would be constitutionally superior to the
Wagner model and would ‘greatly enhance’ the freedom of Canadian workers to participate meaningfully in the governance
of their working lives. 56 More so than his labour law contemporaries, Beatty trusted that, once the principles of majoritarianism
and exclusivity were deconstructed through constitutional judicial review, legislatures in Canada would respond by enacting new
laws that better protected the rights of all workers to participate meaningfully in the creation of their own working conditions. 57
*179 However, it quickly became clear that a majority of SCC justices had a very different vision for section 2(d) than Beatty.
Over a five-year period beginning with RWDSU v Dolphin Delivery in 1986, 58 and followed by the 1987 ‘Labour trilogy’
cases, 59 Professional Institute of the Public Service of Canada v Northwest Territories (Commissioner) in 1990, 60 and Lavigne
v Ontario Public Service Employees Union in 1991, 61 the SCC rejected Beatty's analysis wholeheartedly. These cases decided
that the Charter did not apply to judges who used common law torts to restrict worker collective action and that section 2(d) on
FOA protected neither a right to collective bargaining nor to strike. Nor did section 2(d) protect a right of unionized workers
to refuse to fund non-collective bargaining causes with which they disagreed. 62 At every turn, the SCC went against Beatty's
predictions.
Beatty was initially defiant, arguing that the first volley of SCC decisions would ultimately collapse on their own incoherence. 63
As a student in his labour law class in 1990, I recall Beatty announcing dramatically that one day he would be redeemed. He
left open the possibility that future SCC justices might one day ‘face up to just how arbitrarily their predecessors have treated
workers' under the Charter. 64 However, by 1991, Beatty had conceded defeat to the sceptics. 65 In 1992, Brian Etherington
declared that Beatty's ‘naïve’ and ‘simplistic’ predictions had been ‘soundly and repeatedly rejected.’ 66 By the early 1990s,
Beatty's Putting the Charter to Work had been filed away in the labour and constitutional law history stacks to collect dust. Beatty
moved onto other projects, as did the labour *180 law academy, and the Charter entered an extended period of hibernation
within the law of work.
B THE REDEMPTION OF DAVID BEATTY?
But then something unexpected happened. In a stunning reversal as the new century dawned, the SCC revisited its earlier narrow
interpretation of FOA and embarked on a nearly two-decade-long odyssey of reformation on FOA. 67 We can move quickly
through a summary of what is by now a well-known story. The first hint that something was afoot came in the 2001 decision
in Dunmore v Ontario (AG), in which the Court ruled that the exclusion of agricultural workers from the OLRA contravened
section 2(d) of the Charter, an outcome that Beatty had forecasted. 68 The Court ruled that FOA protects the right of workers
to make collective representations to their employer, and the exclusion of agricultural workers from the protections for trade
union activity offered to other employees ‘substantially interfered’ with the ability of those workers to exercise that right. The
Dunmore judgment even cited Beatty's Putting the Charter to Work in explaining why the exclusion of agricultural workers
was not saved by section 1. 69 In Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia in
2007, the SCC overruled its 1990 decision in Professional Institute of the Public Service of Canada and held that the Charter
protects a right to collective bargaining after all. 70 The full extent of that right remained uncertain, but it included at least a
procedural right to make submissions to an employer through an association and to have those submissions considered ‘in good
faith’ by the employer, which must engage in a ‘meaningful dialogue’ with the association. 71 Dunmore and Health Services
awoke the labour law academy from its extended Charter slumber. The Charter, and section 2(d) on FOA, in particular, once
again had almost everyone's attention.
Next came Ontario (AG) v Fraser in 2011. 72 Fraser was the sequel to Dunmore. Following Dunmore, the Ontario government
enacted the Agricultural Employees *181 Protection Act (AEPA), which provided those workers with the absolute minimum
scope of protection for collective bargaining that the Court had spelled out in Dunmore and Health Services:
• Unfair labour practice protections to protect employees from reprisals, threats and intimidation for
exercising their rights of association (sections 8-10); and
• A requirement for employers to give an employees' association a reasonable opportunity to make

representations, orally or in writing, respecting terms and conditions of employment of one or more of its
members employed by the employer (section 5). 73
In order to satisfy the requirement noted in Health Services that employers engage in ‘meaningful dialogue’ with employees'
representatives, the AEPA clarified that the employer ‘shall listen’ to oral representations or ‘read’ written representations. 74
The AEPA was unusual in Canadian labour law because it did not single out ‘trade unions' as the exclusive form of employee
association. 75 Instead, it used language found in early Canadian collective bargaining legislation protecting workers'
rights to form or join ‘employees' associations,’ defined as associations ‘of employees formed for the purposes of acting in
concert.’ 76 In this way, the AEPA aligned closely with section 7 of the NLRA on the right to engage in concerted activities,
which was important in Weiler's proposed reforms of the US labour law, except that unlike section 7, the AEPA did not
protect a right to strike (or even to access some other form of dispute resolution). 77 Nothing in the AEPA required majority
employee support as a precondition of the right to make ‘collective representations,’ and exclusivity did not apply. Any
worker could join with any coworkers and, together as group or through an association of their choosing, approach their
employer with employment-related concerns *182 or proposals, although it appeared on the face of the AEPA that the
employer could simply listen, nod along, and then tell the employees to get lost.
The SCC ruled in Fraser that the AEPA satisfied the Charter right to collective bargaining, concluding that the statute when
read in context must be interpreted to include an implied duty on employers ‘to consider employee representations in good
faith.’ 78 The Court rejected the argument, which was mostly accepted at the Ontario Court of Appeal, that recent section
2(d) jurisprudence had effectively constitutionalized the Wagner model. 79 Section 2(d) did not protect any particular model
of collective bargaining but, rather, ‘a meaningful process of collective bargaining,’ which was satisfied in the AEPA by the
obligation of the employer to engage in a ‘meaningful dialogue’ with any employee association that demanded an audience to
make representations. 80 Fraser made clear that the Wagner model was just one example among many that could satisfy the
constitutional right to collective bargaining.
In Mounted Police Association of Ontario v Canada (AG) (Mounted Police Association), which was released in 2015, the SCC
ruled that a legislative scheme that imposed upon workers a non-independent employee association violated section 2(d). The
Court concluded that section 2(d) must be given the broad, generous, and purposive interpretation that the courts have assigned
to other Charter freedoms. 81 Beatty had criticized the SCC's earlier approach in the Labour trilogy cases precisely on this
basis. 82 More than any decisions so far, Fraser and Mounted Police Association encouraged the sort of policy conversation
about alternative forms of collective bargaining to the Wagner model of the sort that Beatty *183 envisioned the Charter
would instigate. The Court recognized that there was ‘an ongoing debate on the desirability of various forms of workplace
representation and cooperation and on their coexistence’ and signalled that the Charter was flexible enough to accommodate
a variety of models. 83
However, while the SCC explained that FOA was not synonymous with the Wagner model, it nevertheless affirmed this model
as one example ‘of how the requirements of choice and independence ensure meaningful collective bargaining.’ 84 Therefore,
while Beatty certainly would have agreed with the outcome in Mounted Police Association (that a government cannot impose
a non-independent association upon workers), and the SCC's new ‘purposive’ approach to section 2(d) aligned more closely
with Beatty's normative vision than did the jurisprudence from the previous two decades, the SCC's continued approval of
majoritarianism and exclusivity in the Wagner model remained at odds with Beatty's analysis. A similar pattern, whereby the
SCC lands on an outcome that Beatty had predicted by applying an entirely different legal analysis, was evident in the next
case as well.
After Health Services and Fraser, it seemed inevitable that the SCC would formally overturn the 1987 Labour trilogy cases at
the first opportunity. That opportunity came in 2015 with Saskatchewan Federation of Labour v Saskatchewan. 85 The Court in
Saskatchewan Federation of Labour ruled that the Charter protects a limited right to strike, noting that ‘the ability to engage in
the collective withdrawal of services is a necessary component of the process through which workers can continue to participate
meaningfully in the pursuit of their collective workplace goals.’ 86 The Court ruled that the test of whether government action
interferes with the right to strike is whether it ‘substantially interferes with a meaningful process of collective bargaining.’ 87
There was much in Saskatchewan Federation of Labour that aligned with Beatty's normative vision. For example, the SCC's
emphasis on the importance of the right to strike in ensuring workers can bargain on ‘a more equal footing’ and its willingness
to look to European models, including the German model, as examples of alternative systems to the Wagner model that protect
a robust right to strike would no doubt have been welcomed by Beatty. 88
Once again, the SCC had arrived at an outcome - a constitutional right to strike - that was consistent with Beatty's vision for
a post-Charter labour code. However, the SCC did not adopt Beatty's reasoning to get there. Beatty believed that the right to
strike followed logically from the individual right to withhold one's labour in order to improve their working conditions. He
argued that FOA must ‘guarantee individuals the opportunity to act collectively in ways they are permitted to act alone.’ 89
Since an individual has a right to hold out for better working conditions, FOA must protect a right to hold out alongside one's
*184 coworkers. This simple idea had been rejected by the SCC in the 1987 Labour trilogy cases because the judges decided,
incorrectly in Beatty's opinion, that there was either no individual equivalent of a right a strike or that there was no lawful right
of an individual to hold out for better working conditions. 90
As Brian Langille has explained in a series of papers, the SCC charted a path away from the idea that FOA means simply the
freedom to do in association that which one is legally entitled to do alone, beginning in Health Services. 91 Therefore, it came
as little surprise that the SCC did not adopt this line of attack as the basis for recognizing a right to strike in Saskatchewan
Federation of Labour. Rather than construct a right to strike upon an individual freedom to withhold one's labour in association
with others, the SCC ruled that the right to strike was protected as a necessary component of a ‘meaningful process of collective
bargaining’ when ‘good faith negotiations break down.’ 92 In this way, the SCC appears to link the right to strike to the
constitutional duty to bargain in good faith, a duty that is very closely linked to a Wagner model way of thinking about the world.
This suggests that, despite the SCC's repeated claims that it was not constitutionalizing the Wagner model, the constitutional
right to strike was not entirely disconnected from that model. 93 This is not at all how Beatty would have arrived at a Charter
right to strike.
The point of this whirlwind review of recent FOA jurisprudence was to demonstrate that the arc of labour law policy has in
this century bent slowly toward outcomes that Beatty advocated three decades ago. Many of the legal rules governing work
that Beatty predicted would emerge in the post-Charter era have now come to pass: the exclusion of agricultural workers from
collective bargaining legislation has been struck down and remaining exclusions are now constitutionally suspect; the rights to
collective bargaining and to strike have been recognized by the SCC as falling within the scope of FOA; and the SCC has stated
that workers must have freedom to select their own bargaining agent free from state compulsion. And there is more. In the
2001 decision in R v Advance Cutting & Coring Ltd, eight of nine SCC judges held that the Charter protects negative FOA -
the right to not be compelled to join an association - as Beatty had predicted. 94 In Pepsi-Cola Canada, while the SCC did not
overrule Dolphin Delivery, it did subject the common law to limited Charter scrutiny through the backdoor by striking down
the common law rule that all secondary picketing was ‘unlawful per se’ as *185 being inconsistent with ‘Charter values.’ 95
Mandatory retirement has also been mostly abolished, as Beatty predicted it would be, albeit mostly due to legislative policy
change rather than Charter litigation.
And, importantly, the SCC has signalled in cases beginning with Health Services through to Saskatchewan Federation of Labour
that FOA, as guaranteed by the Charter, is broad enough to encompass a variety of collective bargaining models, opening
the door to the policy conversation that Beatty envisioned about possibilities for collective bargaining in Canada beyond the
Wagner model. As I have explained, while these outcomes largely align with Beatty's predictions in the 1980s, most did not
come about in the manner that Beatty had predicted. Most notably, while the SCC acknowledged that there exists a plurality of
alternative models of FOA that would provide workers with a meaningful process of collective bargaining, it has not used this
reality as a basis for striking down the Wagner model as unconstitutional, as Beatty argued it should. That has not occurred,
and nor is it likely to in the future. The SCC has stamped its approval on the Wagner model and will not likely be the cause of
its demise. 96 My point is not that Beatty's work directly impacted the recent evolution of section 2(d) jurisprudence. It is that,
as we stand here at the start of the 2020s, the labour law landscape today looks much closer to Beatty's normative vision of a
post-Charter world than at any time before. In the next part, I will take this argument one step further and propose that Beatty's
claim that the Charter will ultimately usher in a post-Wagner model landscape that includes a collective bargaining model that
is delinked from majoritarianism and exclusivity may yet prove to be prescient.
IV Tsunamis, legal foreshocks, and the future of Canadian labour law
The Wagner model and its twin pillars of exclusivity and majoritarianism still reign as the dominant model of collective
bargaining in Canada. But there are cracks in the foundation. The SCC has signalled in strong and repeated terms that the
principles of exclusive, majority representation are not required by the Charter. 97 The Charter protects a ‘meaningful process
of collective bargaining’ that permits workers to come together and make collective representations to their employer, and
exclusive, majority trade unionism in the Wagner mould is but one of many possible models though which governments can
pursue these collective objectives. 98 This leaves the door open to experimentation with different models *186 of collective
bargaining. And here is where I want to tie the two big 1980s debates together around the subject of the future of Canadian
collective bargaining law.
The forecast in Canada today is similar to that which greeted Weiler upon his arrival in the United States in the mid-1980s.
Private sector union density is in decline and could well fall below 10 per cent of Canadian workers. It is not surprising therefore
that there is heightened interest in Canada, as in the United States, in alternative models of collective bargaining that could
bolster or even eventually supplant the Wagner model. In the near term, familiar debates over modest reforms to the Wagner
Model will continue. The pendulum will swing back and forth on the margins with occasional tweaks of the Wagner model
as governments come and go, as has become the norm since the 1990s. But the vast majority of Canadians will remain outside
any system of collective voice in the workplace as long as the Wagner model remains the dominant legal model of collective
bargaining in Canada. There is nothing novel in this observation, but the urgency to identify alternatives to the Wagner model
will increase as private sector union density falls, as occurred in the United States beginning in the 1980s.
The big reform ideas will continue to focus on models that build upwards from the Wagner model, such as on broader-based
and sectoral bargaining schemes 99 and collective agreement extension or decree systems, 100 and downwards from that model,
such as on the prospects for minority unionism and other forms of non-majority, non-exclusive employee representation. 101
None of these ideas are novel either. They have been floating around in policy discussions for decades. However, there will
remain huge obstacles standing in the way of reform that would fundamentally alter or supplant the Wagner model. In the
United States, labour law reform, even of a relatively modest nature, has proven all but impossible at the federal level for a
half-century. In Canada, where labour relations fall primarily within provincial jurisdiction, labour law reform is relatively
common. However, it *187 is exceedingly difficult to make sustainable labour law reforms, even of a modest nature. Labour
law reform in Canada has become a deeply partisan exercise, as has long been the case south of the border. 102 Therefore, it
will be exponentially more difficult for governments to make substantial labour law reform stick, particularly reforms that seek
to extend the reach of collective bargaining. 103
We need only consider the recent expert report commissioned by the Ontario Liberal government, the Changing Workplaces
Review. 104 The experts were specifically encouraged by the government to consider new labour relations models to better
protect precarious workers who have not benefited from the Wagner model. Yet the final report dismisses sectoral bargaining
as unworkable in sectors without a history of collective bargaining, which of course is precisely where sectoral bargaining is
most needed. The report concludes
that in order for broader-based multi-employer bargaining to be workable, there has to be a history of at least some collective
bargaining in the sector. It is too large a step to go from no bargaining experience at all to a highly sophisticated multi-employer,
multi-union collective bargaining regime. In other words, before forcing employers to bargain together, collective bargaining
has to take root first with individual employers. 105
A recent report out of Harvard Law School proposed a sweeping set of labour law reforms for the United States, including
works councils and sectoral bargaining. 106 Were the United States to move in this direction, it is possible to imagine some
Canadian governments following suit, as occurred with the Wagner model in the 1940s. However, it remains a long shot that
such a dramatic shock to the labour relations model could make it through the US Congress anytime soon.
Baring a sudden, dramatic uptick in worker power and militancy prepared to challenge the political status quo, such that even
capital accepts the need for a new model of collective bargaining - similar to what occurred in the 1940s - it is unlikely in
the present political climate that a lone provincial government would take a leap of faith and introduce a brand new collective
bargaining scheme that fundamentally transforms or replaces the Wagner model in ways that empower workers and their
associations. Even were that to happen, the lifespan of the model could be a single political term. When a post-Wagner model of
collective bargaining emerges, it will come not by means of a sudden *188 legislative tsunami that sweeps the Wagner model
away, leaving something shiny and new in its place, but, rather, in the wake of a series of smaller foreshocks that chip away
at the model and expose alternatives over time. In the remainder of the article, I will suggest what some of those foreshocks
might look like.
A FORESHOCKS TO THE LEGAL MODELS GOVERNING

WORKERS EXCLUDED FROM THE WAGNER MODEL
We can distinguish potential foreshocks that will affect workers who are excluded from the Wagner model at present from
foreshocks that will disturb the Wagner model itself. 107 The first foreshock has already begun. It came initially in the form
of Dunmore, which, as discussed earlier, struck down the exclusion of agricultural workers from the OLRA. That decision
was followed by Mounted Police Association, which held that a legislative model that imposed a non-independent employee
association on Royal Canadian Mounted Police officers violated section 2(d). These decisions could spell the end of our
governments' long-standing practice of excluding occupations entirely from coverage under protective collective bargaining
legislation and of imposing non-independent associations. If the Charter requires that agricultural workers and police officers
be protected by legislation that protects a right of free association and collective bargaining, then the same should be true of
domestic workers and other occupations entirely excluded from all collective bargaining legislation. 108
Beatty argued in 1987 that bringing an end to occupational discrimination in coverage under protective labour legislation would
be ‘the most straightforward situation’ in which the courts would bring the Charter to bear on the law of work in a manner that
assists the economically vulnerable. 109 As he explained using the exclusion of agricultural workers as an example:
The practical effect of excluding farm workers from our Labour Relations Acts is to create two separate legal superstructures,
which entail radically different degrees of worker participation in the settlement of the rules which govern the workplace. Farm
workers are assigned to the one which offers substantially less protection [the common law] for their opportunities for personal
self-government. Legally, that is discrimination of the most blatant and explicit kind. 110
*189 It took some fifteen years for the SCC to come around to Beatty's ‘straightforward’ conclusion, but there is now good
reason to believe that it is no longer constitutionally valid for governments to hive off whole categories of occupations from
statutory coverage under collective bargaining legislation.
The more interesting question for the future of Canadian labour law is what sorts of collective bargaining models will emerge to
cover previously excluded workers and whether these models will spread beyond those workers. Governments could simply
sweep those workers into the Wagner model. 111 However, we know from Fraser that they need not do so. As noted above,
the decidedly non-Wagner AEPA provides a roadmap for the design of a different sort of collective bargaining model that is
(so far) Charter compliant and yet much thinner than the Wagner model. 112 The tribunal responsible for enforcement of the
AEPA, the Agriculture, Food, and Rural Affairs Appeal Tribunal (AFRAAT), noted recently that ‘the Ontario Labour Relations
Act is much more comprehensive in its governance of employer-employee relations' than the AEPA:
Had the Ontario Legislature wanted to follow the LRA model, it could have done so by either incorporating similar language
or by allowing agricultural employees to organize under that Act. Instead, the AEPA contemplates a model whereby more than
one employees' association having one or more members can make representations to the employer. Therefore, in theory, each
employee could have a separate association making separate representations to the employer. 113
Moving forward, we may see the AEPA model, or something like it, extended to more types of workers, including some whose
occupation is at present excluded entirely from collective bargaining legislation.
The AEPA recognizes the possibility of a plurality of employee associations representing employees performing the same or
similar jobs within a single workplace. It provides workers with greater freedom of choice as to which association to support,
if any, than does the Wagner model and, in this regard, is consistent with the general thrust of Beatty's arguments against
exclusivity and in favour of ‘voluntary’ and ‘plural’ models of FOA. ‘Collective bargaining’ under the AEPA model, such as it
is, also establishes a model of collective voice not dissimilar to what Weiler envisioned in his EPC model. Interactions between
EPCs and employers in Weiler's model would have been more tightly regulated in terms of requirements for information sharing
and financial support, for example, whereas the AEPA simply requires the employer to meet and engage in ‘meaningful dialogue’
with any employee committee that comes along. But there *190 are parallels between the two models in the sense that both
Weiler's EPCs and the AEPA model envision an alternative, thinner model of collective worker voice than the Wagner model
in which the employer's primary obligation is to respect the right of employees to associate and to then sit down and dialogue
with the employees' collective representation.
However, there are also important differences between the AEPA and alternative models that Beatty and Weiler envisioned.
Most notably, the AEPA lacks an expressed protected right to strike. 114 Both Beatty and Weiler argued that some form of a
right to strike must accompany collective bargaining, even if that bargaining takes place other than through the Wagner model.
Beatty assumed a right to strike would be recognized as an element of FOA under the Charter once the Wagner model was
dismantled, whereas Weiler relied upon section 7 of the NLRA to protect the right of workers to strike if unhappy with the
collective dialogue, pursuant to the EPC model. The elephant in the room, post Saskatchewan Federation of Labour, is whether
the AEPA model can withstand Charter scrutiny again now that there is a constitutional right to strike. 115 The absence of a
protected right to strike in the AEPA could give rise to the next foreshock to hit Canadian labour law. For workers in jobs that
are excluded from the full Wagner model, the absence of any statutory protections against reprisals for collective withdrawals
of their labour seems now to be a glaring hole in Canadian labour law. If, as the SCC pronounced in Saskatchewan Federation
of Labour, ‘the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective
bargaining,’ and the Charter guarantees a meaningful process of collective bargaining, then models such as the AEPA, insofar
as they provide no protections from dismissal or discrimination for exercising the right to strike (or access to some other neutral
dispute resolution model), may not survive the next foreshock.
We may find out soon enough. In a recent case called United Food and Commercial Workers International Union v MedReleaf
Corp, the union complainant challenged the absence of a right to strike in the AEPA. 116 The AFRAAT dismissed the application,
ruling that Fraser is presumptively still valid, subject to clarifications made in Mounted Police Association and SFL. The AEPA
protects a right of workers to choose an independent association and to make collective representations through that association
and so is not inconsistent with Mounted Police. The AFRAAT ruled further that the AEPA was not inconsistent with the SFL
because employees covered by the legislation have ‘the freedom to withdraw their services to exert economic leverage on their
employer in negotiations over employment terms.’ 117 The fact that the AEPA includes no statutory guarantee of reinstatement
once a strike *191 concludes is not a Charter violation because, according to the AFRAAT, nothing in the SCC jurisprudence
requires ‘statutory job protections for employees exercising their right to strike.’ 118 If the Charter requires job protections for
strikers, ‘it will be for the [SCC] to determine and not this Tribunal.’ 119 At the time of publication, a decision on whether
judicial review of this decision would be pursued had not been announced. 120 For now, the meaning and substance of a right
to strike in Canada applicable to workers excluded from the Wagner model remains uncertain. However, how that issue is
ultimately resolved could have significant implications for the future of Canadian labour law.
These first two foreshocks - the end of exclusions of entire occupations from protective collective bargaining legislation and
the constitutional right to strike as a condition of meaningful collective bargaining - may shake the legal framework that has
governed collective bargaining (or, more accurately, the lack thereof) of workers who have historically been entirely excluded
from the Wagner model. What new framework will emerge from the rubble is uncertain. Perhaps we have seen a glimpse of
that future in the decision of the AFRAAT in the MedReleaf decision, a model that introduces the thinner US version of the right
to strike, which permits employers to permanently replace strikers in some or all circumstances. Maybe it will be ‘AEPA Part
Deux’: a model like the AEPA but with some version of a protected right to strike or access to arbitration grafted on. Or perhaps
we will see a return to a model like that found in the short-lived Agricultural Labour Relations Act (ALRA) introduced by the
Ontario New Democratic Party in 1994, which essentially extended the Wagner model to agricultural workers but substituted
final offer interest arbitration for the right to strike. 121 The latter two approaches at least would move the needle further in the
direction of the visions of both Beatty and Weiler, who envisaged workers having access to alternative forms of a collective
voice from the full-fledged Wagner model, backed by a protected right to strike in some form.
Or maybe governments will return to the drawing board and come up with a different model that complies with the SCC's new
labour code but that is different from the AEPA, the ALRA, and the Wagner model. 122 What is clear is that the SCC's twenty-
first-century rewriting of FOA jurisprudence has finally spawned the policy ‘conversation’ that Beatty anticipated about the
scope and reach of a statutorily protected right to collective bargaining and to strike beyond the Wagner model. Insofar as this
conversation might ultimately lead to the emergence of a model like the AEPA, but backed by a right to strike in some form as
required by the Charter, we may find that we have moved closer still to Beatty's vision of a post-Charter labour law.
*192 B LEGAL FORESHOCKS TO THE WAGNER MODEL ITSELF
Even less clear is whether foreshocks will rock the Wagner model itself anytime soon. The SCC has already declared that the
Wagner model is Charter compliant, and there is no great push from labour or capital to dismantle it. Not a single employer or
union argued for the repeal of the Wagner model during the recent consultations in Ontario pursuant to the Changing Workplaces
Review, and, in fact, as noted earlier, some Canadian unions have engaged in an extended litigation campaign intended to
constitutionalize the Wagner model or parts of it. 123 The labour movement is unlikely to be an ally to any campaign to abolish
the Wagner model, at least without an obvious successor model that places trade unions at its core and ensures that employers
cannot dominate whatever vehicle of collective employee voice it envisions. Conservative politicians and employer lobbyists
seem content to push back against the remaining vestiges of Wagner model that facilitate labour power, such as mandatory
union dues clauses, while preserving the model's basic infrastructure.
Alberta's United Conservative Party, inspired by the recent US Supreme Court decision in Janus, has signalled its intention
to prohibit the expenditure of union dues on ‘political activities and other causes' without an explicit opt-in by the worker, a
move that would usher in a US-style agency fee model that will require unions to distinguish between collective bargaining
activities and other activities. 124 A related US import that may also become more common in Canada will be union financial
reporting requirements similar to those long required under the Labor Management Reporting and Disclosure Act of 1959 and
the short-lived federal Canadian Bill C-377. 125 These sorts of US-inspired reforms would represent historically significant
changes to the balance struck under the Canadian *193 Wagner model that would no doubt burden Canadian unions, but
they preserve the Wagner model. Partisan reforms such as these will come and go with the political winds like so many other
familiar tweaks to the model.
A more radical transformation was floated by the Ontario Progressive Conservative Party in 2013 through a private member's
bill. 126 That bill would have introduced ‘members only’ collective bargaining and abolished exclusivity and the Rand formula
while leaving other elements of the Wagner model in place, including the requirement for unions to obtain majority support
in an appropriate bargaining unit in order to obtain bargaining rights even for its own members. 127 As Brian Langille and
Joshua Mandryk have explained, this model was an incoherent mess, but it does serve as a warning that if the Wagner model
and exclusivity is taken down by a sudden tsunami, it may be at the hands of conservative politicians seeking to undermine
collective bargaining rather than by those hoping to extend its reach. 128
1 Proposals for complementary forms of worker voice
If private sector union density continues its decline in Canada, we will experience a renewed push for complementary forms
of collective worker voice in workplaces covered by the Wagner model but where no majority/exclusive trade union has
bargaining rights. This is what Weiler had in mind with his EPCs, and he was not alone in advocating for additions to the
Wagner model that would permit thinner forms of collective bargaining when no majority union is certified. For example,
Roy Adams has long argued for a system that would require employers to bargain with employee associations even when no
majority union is certified. 129 Bernie Adell argued long ago for statutory members-only collective bargaining when no union
has majority support, that included a full duty to bargain in good faith and a right to strike once preconditions were satisfied. 130
I argued more recently in favour of a model of ‘graduated’ FOA, the idea that thinner forms of collective voice should be
facilitated when majority trade union *194 bargaining is unavailable. 131 The idea of mandated collective dialogue that would
provide some voice to workers who lack access to full-fledged Wagner model collective bargaining has deep roots, but there
are still few North American examples of this in practice.
Mandatory workplace committees similar in form to existing joint health and safety committees in Canada could easily
be incorporated into existing labour relations or employment standards legislation, and, indeed, such a move has already
been recommended in Canada in formal law review commissions. Harry Arthurs proposed the establishment of ‘Workplace
Consultative Committees' to dialogue over working time issues in Fairness at Work. 132 The recent Changing Workplaces
Review report recommended the voluntary establishment of ‘Consultation Committees' with employee representatives that
would receive information from the employer and consult on workplace matters. 133 Committees like this would provide some
collective voice where presently there is none, but they would hardly transform Canadian labour relations, particularly if they
are not combined with a right to strike.
2 A Canadian right to engage in concerted activities
So far, I have identified some changes that could be coming to the Canadian Wagner model, but none that would dramatically
alter Canadian labour relations. However, there is one potential foreshock that would mark a more fundamental disturbance
within the Canadian Wagner model. It is the arrival in Canada of a right of workers to engage in ‘concerted activities for
mutual aid and support’ similar to that protected in the United States by section 7 of the NLRA. Consider for the purposes of
discussion a recent Ontario common law decision called Burton v Aronovitch McCauley Rollo. 134 Althea Burton was a law
clerk who raised a concern with a manager about the employer's pay practices on behalf of herself and her coworkers. A month
later, Burton was told to meet with the managing partner for her annual review. At the meeting, the partner confronted Burton
with ‘rumours' that the law clerks were discussing compensation and accused *195 her of violating a ‘confidentiality clause’
in her employment contract prohibiting employees from disclosing their pay. Soon afterwards, Burton was terminated ‘without
cause,’ and she sued for wrongful dismissal. The judge concluded that Burton was terminated because ‘she had engaged in
discussions regarding her salary with other employees at the firm.’ 135
The main issue in the lawsuit was how much notice of termination Burton should have received, but what interests me are the
facts. Consider a hypothetical. What if instead of suing her employer in the courts for wrongful dismissal, Burton had filed an
unfair labour practice complaint under the OLRA? What if she alleged that the reason for her termination was that she raised
an employment-related concern on behalf of herself and her coworkers, which is in fact precisely what happened? There is no
doubt that the termination would have violated section 7 of the NLRA were she fired in Buffalo rather than Toronto. 136 The
gag clause in Burton's employment contract purporting to prohibit her from discussing her pay with coworkers would also be
unlawful if the NLRA applied, as it seeks to block access to the section 7 right of employees to engage in concerted activities
for mutual aid. 137 Moreover, Burton's coworkers would have a protected right to walk off the job (to strike) in response to the
employer's reactions to their complaints if the NLRA applied. 138
But Burton was fired in Toronto, and the OLRA applies, not the NLRA. Burton's job is not excluded from the OLRA, and,
therefore, insofar as she engages in activities covered by the legislation, the various rights and obligations in the OLRA apply to
her and her coworkers. However, hypothetically, had she spoken to a labour lawyer, Burton would have discovered a problem
with her potential unfair labour practice complaint. On its face, the OLRA did not protect Burton and her coworkers. 139 That
is because the OLRA, similar to Wagner model legislation in other Canadian jurisdictions, protects a right to engage in ‘trade
union activities,’ not ‘concerted activities' more generally as in section 7 of the NLRA. The various unfair labour practice
provisions similarly protect only *196 against reprisals for ‘trade union’ activity. 140 The obstacle that Burton confronted in
Ontario is that there is no ‘trade union’ in her story at all: she is not a trade union member; she had not contacted a trade union;
and there was no trade union contemplating an organizing drive at her workplace. Burton and her coworkers were engaged in
organic, informal, ‘non-union’ associational activity, not the ‘trade union’ activities that appear to be the concern of the OLRA.
However, maybe Burton's lawyer nevertheless filed an unfair labour practice complaint, arguing that ‘trade union’ in the
legislation must be given a broad, purposive reading that includes spontaneous, non-union associational activity of the sort
engaged in by Burton and her colleagues. This is precisely what an employee terminated in similar circumstances argued in a
1994 case before the OLRB called Alagano v Miniworld Management. 141 In this case, a group of nonunion employees at a
day care ‘decided to bargain collectively,’ without a union, believing ‘that [they] would have the greatest chance of success in
improving [their] wages and working conditions if all of the employees bargained together.’ 142 A leader of the group, Susan
Chislett, provided the employer with a list of employee concerns and was then terminated. The day afterwards, other employees
in the group set up a picket line outside the workplace to protest Chislett's termination. They were also terminated for not
reporting to work as scheduled. The Labour Board in Miniworld considered the employer's argument that the OLRA does not
apply because nothing in the facts related to a ‘trade union’:
The employer raises an interesting issue, which is to what extent the Act protects employees who wish to negotiate collectively
with their employer, without a yet- apparent trade union organization or formally created association representing them. There is
no doubt that these employees have decided to bargain collectively with their employer. Does the absence of a formal structure
through which these efforts have been made deprive them of their right not to be discriminated against, suffer reprisals or be
discharged because of these efforts? 143
Ultimately, the Labour Board did not need to decide this ‘interesting’ issue because it was dealing with an interim reinstatement
case in which it needed only to decide whether the facts disclosed an arguable breach of the OLRA. The Labour Board ruled that
‘there was at least an arguable case’ that the legislation applied and that ‘these employees were engaged, in their own fashion,
in attempting to establish an association that might have acquired the characteristics of a “trade union” under the Act.’ 144 The
case then settled before the OLRB decided the question of whether the unfair labour practice provisions protect employees who
engage in concerted activities without union involvement.
Miniworld left open the possibility that the ‘right to engage in trade union activities' protected in Canadian labour law statutes
has, all along, protected non-union employees from reprisals for acting collectively for their mutual aid, regardless of *197
whether a trade union is involved or not. 145 Maybe Canadian labour law has always had its own version of section 7 of the
NLRA, but few have realized it. 146 Or maybe the OLRB would have dismissed the case on the merits finding that the OLRA
was only intended to regulate one form of concerted activity by employees - that is, ‘trade union activity.’ But even if Labour
Boards were to read into Canadian collective bargaining legislation a protected right of employees to engage in concerted
activities of the sort that occurred in Miniworld and Burton, the plaintiffs in those cases could still go no further than to claim
a remedy for the unlawful dismissals. The workers would be treated as if they had been organizing a union for the purposes of
the unfair labour practice provisions, but their employers could still ignore their bargaining demands. And unlike in the United
States under section 7 of the NLRA, the workers in these two cases would not have a lawfully protected right to strike in Canada
in protest of their employers' actions. Even with an expansive, purposive application, the OLRA could not protect Chislett's
coworkers who engaged in a sympathy strike to protest her dismissal.
The fact that the US model protects a broader right of non-unionized workers to engage in concerted activities than in Canada
has attracted relatively little attention over the years. Some Canadian unions back in the 1940s initially pushed for a section 7-
like right to engage in concerted activities, but those demands were soon overtaken by general satisfaction with the Canadian
Wagner model that had emerged by the end of the decade. There were occasional comparative law pieces that imagined how
the NLRA's section 7-like rights could supplement the Canadian Wagner model. 147 But, overall, you will not find many
arguments in *198 the Canadian academic or policy literature of the past seventy years arguing that a general right to engage
in concerted activities for mutual aid and protection would be an important addition to Canadian collective bargaining law.
However, the needle may be moving in this direction as the percentage of workers with access to majority trade union collective
bargaining declines.
Weiler noted the absence of a right of non-union workers in Canada to engage in concerted activities, including a right to
strike, in his 1980 book Reconcilable Differences. 148 However, he did not propose then that Canadian governments introduce
a NLRA section 7-like right; in 1980, Weiler was still relatively confident that the Canadian Wagner model functioned well
enough as a model of FOA. However, when he turned his attention a few years later to reforming US labour law, at a time
when private sector union density in the United States roughly sat at Canada's present levels, section 7 of the NLRA loomed
large. The fact that section 7 protected a right of workers to act collectively and to strike even when they were not represented
by a majority, exclusive, certified union was crucial to his proposed reforms. He wanted to strengthen section 7 by beefing up
remedies, by opening up more avenues for alternative forms of representation, and by providing greater protections for strikers
through a scaling back of the right of employers to permanently replace strikers, including strikers who were not represented by
a certified, majority union. In a climate where majority/exclusive trade unionism in the Wagner mould reached only about 15
per cent of the private sector workforce (and falling), it was obvious to Weiler that it was necessary for the law to promote and
protect alternative means of collective voice. A broad section 7 right to engage in concerted activities was essential to that task.
Similarly, the ongoing decline in private sector union density in Canada has drawn renewed academic interest in the need
to protect workers who come together for mutual aid without the direct support of trade unions, such as the employees in
the Miniworld and Burton cases. 149 Recently, a federal government expert panel recommended ‘introducing a protection for
concerted activities' into the labour standards section of the Canada Labour Code. 150 Even some trade unions proposed the
introduction of a ‘right to engage in concerted activities' in their submissions to the Changing Workplaces Review, recognizing
that a collective right to resist is a useful labour standard to empower workers and also perhaps to create new possibilities for
minorities unions. 151 Momentum is growing. Advocates of a new ‘right to engage in concerted activities' in Canada argue that
such a *199 right would make explicit that workers who engage in activities such as those in Miniworld and Burton on their
own or with the aid of labour centres or other community-based groups rather than trade unions are protected from reprisals.
It is no coincidence that the terminated employees in Miniworld and Burton were women employed in occupations - law clerk
and private sector day-care worker - in which traditional unions have little presence, with the result that workers have no
effective right to engage in collective action in Canada. In the United States, section 7's application to workers who have
traditionally not benefited from majority/exclusive trade union collective bargaining under the Wagner model has been pivotal
in recent collective action campaigns by those workers. According to Harvard Law School's Benjamin Sachs and Sharon Block,
with private sector union density sitting near 6 per cent in the United States, section 7's broad application to worker activities
outside of formal majority/exclusive collective bargaining ‘is all that matters' to most US workers today in terms of labour
law. 152 Section 7 of the NLRA has protected US workers participating in recent large-scale protests and campaigns by non-
union workers across the United States, including strikes by fast food and retail workers and collective resistance activities
by Amazon and other technology workers. 153
The important point of distinction is that FOA in the United States builds upwards from a foundational right of individual
employees to engage in ‘concerted activities for mutual aid and protection,’ whereas Canadian labour law is constructed upon a
right to form or join ‘trade unions' with the aim of achieving government-sanctioned collective bargaining rights in the form of
a certified majority, exclusive trade union. The argument for a Canadian version of the ‘right to engage in concerted activities'
can be understood as a modernization of Weiler's project to create a hybrid Wagner model that draws strengths from both
the Canadian and US versions. His focus in the 1980s was on injecting Canadian elements into the struggling US model, but
as the Canadian Wagner model has experienced its own struggles for relevance in the years since, it is hardly surprising to
find Canadians looking south for elements that could bolster collective bargaining here. Section 7 of the NLRA is an obvious
candidate since it would add to the Canadian legislative toolbox an additional means through which workers could exercise
collective voice when full-fledged Wagner model-style collective bargaining is out of reach.
A protected right to act collectively other than through a majority, exclusive trade union fits squarely within Beatty's normative
agenda as well. As noted earlier, his strong objection to the principle of exclusivity was that it significantly impeded on the
‘principle of equality of liberty’ whereby workers are free to decide how *200 they wish to participate collectively and
through which vehicle, if any. 154 Beatty did not directly address the right to engage in concerted activities under section 7 of
the NLRA, but there can be little doubt that it aligns with his liberal vision of a post-Wagner model system that places the
individual liberty to act collectively at its core. He emphasized what all labour lawyers know - and what the SCC has expressed
on multiple occasions - namely, that, without legal protections from employer reprisals, FOA will often be illusionary. 155 A
legally protected general right to act in concert, without reprisals, is a necessity in any model of FOA that purports to protect
the liberty of workers to join together through a vehicle of their own choosing in order to engage their employer on work
place-related issues. 156
The emergence of a Canadian ‘right to engage in concerted activities for mutual benefit and protection’ would amount to a
grander seismic shift in Canadian labour law than the typical reforms we are used to, with uncertain implications. There is sixty
odd years of National Labor Relations Board and judicial case law developing and applying section 7 of the NLRA to non-
union and non-majority union situations in the United States, although it is really only in the past fifteen years that this aspect
of section 7 has gained prominence, just as the so-called ‘alt’ labour movement gained steam and the organizing activities of
‘worker centres' increased. 157 Section 7 plays an important role within a much broader US labour law system, that is similar
in some respects to the Canadian model but very different in other ways. For example, the notion of a free-standing legal right
of non-union or minority union workers to strike in protest of working conditions is foreign to Canadian Wagnerism. 158 To
suddenly parachute in a legal right for these workers to engage in concerted activities, possibly including a protected right to
strike, could provoke uncertainty, if not hysteria, within the Canadian labour law and business community.
And, yet, there is still good reason to believe that a right to engage in concerted activities in some form will soon come to
Canada and shake up the Wagner model. I can foresee at least three ways this could happen. First, a government might legislate
a section 7-like provision. A progressive government interested in improving the lives of precarious workers might do this in
order to strengthen employee rights by protecting forms of collective action outside of, and as a complement to, full-fledged
Wagnerism. This is the impetus behind the recent *201 recommendation by the federal task force, noted above. 159 It is also
what I had in mind in my 2013 article, as well as what Brishen Rogers and Simon Archer argued in their more recent article
exploring the possibility of a right to engage in concerted activities in Canada. 160
Alternatively, and perhaps counter-intuitively, a legal right to engage in concerted activities could be enacted by a conservative
government as part of a package of reforms intended to weaken existing collective bargaining rights by shifting the dominant
Wagner model in the direction of the thinner AEPA model. For example, a general right to engage in concerted activities could
be enacted alongside reforms that dilute the duty to bargain in good faith required in Wagner model legislation, replacing it
with a less onerous (but still Charter-compliant) AEPA-like duty to engage in a ‘meaningful dialogue.’ It is of course possible
that the flurry of section 2(d) litigation over the past two decades has produced a blueprint by the SCC for governments on how
to design a thinner model of collective bargaining to replace the Wagner model. If that is where this story is leading, the Charter
sceptics may once again reclaim their crown. However, even if that is the road down which Canadian labour policy is headed,
the blueprint will almost certainly require some form of protection against reprisals for concerted activities. There cannot be
meaningful collective bargaining if workers can be dismissed for the simple act of joining together to raise workplace-related
concerns with their employer.
As noted earlier, the AEPA model in some ways already resembles section 7 of the NLRA, but with some notable differences,
including that it still requires that employees act collectively through an ‘association’ (whereas section 7 does not), and the
AEPA may not protect a right to strike (which section 7 does) - the jury remains out on that question, as noted above. I will
return to this issue in a moment.
A right to engage in concerted activities could also arrive in Canada by way of litigation. Two possibilities come to mind. The first
is a finding that existing collective bargaining legislation already protects organic attempts by groups of non-union employees
to raise employment concerns without union assistance. This finding could result from a broad and purposive interpretation
of the statute similar to the approach taken by the SCC in Fraser. 161 Applying such an approach, a tribunal or court could
read a section 7-like right to engage in concerted activities into the Canadian Wagner model simply by extending existing
unfair labour practice provisions to collective activities not involving trade unions. This finding could open the door to creative
forms of collective worker activities and campaigns by non-union workers similar to what we have witnessed in recent years
in the United States.
A third way that a right to engage in concerted activities might come to Canada is indirectly through Charter litigation. What
if Burton and Chislett have their unfair labour practice complaints dismissed on the grounds that they were not engaged *202
in ‘trade union’ activities and they then bring a Charter challenge? They argue that the absence of any protections against
reprisals for their efforts to raise collective concerns with their employer substantially interferes with their FOA. It is a peculiar
system that claims to protect FOA but then permits the employees Burton and Chislett to be terminated for raising collective
employment-related concerns on behalf of themselves and their coworkers. Could a Dunmore-like under-inclusive argument
be made that, insofar as the state has failed to legislate basic protections against reprisals for the sorts of collective activities
engaged in by the employees like Burton and Chislett and their coworkers it has ‘substantially interfered’ with the FOA of those
employees to engage in the Charter protected right to collective bargaining? If so, the remedy could be an order for governments
to enact a section 7-like right of employees to engage in concerted activities without reprisals. Such an order would be consistent
with SCC decisions that have noted that an effective collective bargaining model requires strong anti-reprisal provisions. 162
3 A right to engage in concerted activities as a ‘conversation’ starter
The emergence of a right to engage in concerted activities through any of these mechanisms would open up new opportunities
for Canadian workers to engage their employers collectively outside of traditional majority trade unionism, such as through
mass protests similar to those that have taken place recently south of the border or less grand gestures such as those that occurred
in the Burton v Aronovitch McCauley Rollo and Alagano v Miniworld Management cases. The narrowest application of a right
to engage in concerted activities would be that it is unlawful for employers to discriminate against employees like Burton and
Chisett in those two cases, who were fired for expressing collective employee concerns. This alone would be a useful addition
to the FOA model in Canada, but it would not fundamentally alter the Wagner model. But there is another reason to believe
that a newly recognized right to engage in concerted action could have a more fundamental impact on the future of Canadian
labour law.
A right to engage in concerted activities would bring front and centre the pivotal question of how tightly the constitutional
rights to collective bargaining and to strike are bound to the Wagner model of collective bargaining in Canada. Could a right
to engage in concerted activities morph into a reciprocal obligation on employers to engage in a ‘meaningful dialogue’ with
employees who come forward with collective workplace demands? Does the Charter's FOA blueprint crafted by the SCC since
2001 leave space for an employer like Miniworld to terminate all of its employees who walked off the job one morning in protest
of the dismissal of Chisett for voicing collective concerns? Or does the right to strike as a necessary element of meaningful
collective bargaining only protect public sector workers and the 15-16 per cent of employees (and falling) in the private sector
who find themselves employed at a unionized workplace? 163 If so, why?
*203 These are prescisely the sorts of labour policy conversations that Beatty envisioned would one day need to take place in
a post-Charter world. They are conversations that challenge us to think carefully about what FOA means and that force us to
imagine other models of collective bargaining that do not depend entirely on the system of majority, exclusive trade unionism
that we have depended on for nearly eighty years. They pressure us to identify a theory of FOA to justify the choices we
make. This is how a seemingly minor foreshock to the Wagner model can eventually lead to a more fundamental rethinking
of collective bargaining law in Canada.
V Conclusion
I spent considerable time in this article about ‘the future of labour law’ reviewing debates that took place some thirty to forty
years ago. I did so for two reasons. The first is to describe how the problems with the Wagner model identified in today's
debates were on the radar of Canada's leading labour law scholars back then. Most important was the fact that the majority of
workers in Canada and the United States, especially many of our most vulnerable and precarious workers, had benefited little
or not at all from collective bargaining under the Wagner model. The situation has only grown direr for collective bargaining
since then as reflected in the fact that private sector union density has fallen from about 30 per cent in the early 1980s to under
15 per cent today. As the Wagner model becomes relevant to fewer and fewer Canadians, debates over what should come next
will intensify, as occurred in the United States starting in the 1980s.
The second reason for a deep dive into historical debates about labour law is to demonstrate how the future of Canadian
labour law may have been foreshadowed long ago. That future may eventually include a substantial reinventing of the primary
collective bargaining model, for instance, in the form of broader-based bargaining that encompasses entire sectors of the
economy or mandatory works councils in almost every workplace. That has long been the optimistic view of labour law scholars
who support collective bargaining in both Canada and the United States. However, I have argued that a post Wagner model
era of collective bargaining law is unlikely to come about by means of a sudden, dramatic tsunami that replaces eighty years
of legislative experience and memory with something entirely different. It is more likely that the future of labour legislation
will be carved out initially in the form of smaller foreshocks that reverberate inside and outside the present boundaries of the
Wagner model while leaving the model mostly intact. Some of these foreshocks were telegraphed in the 1980s by Canada's
top labour law minds.
That is when Paul Weiler was thinking about how to restore access to collective bargaining in the United States in the face
of a deteriorating Wagner model. Weiler imagined a hybrid Wagner model that combined elements of the Canadian and US
models and that protected a right of workers to resist their employers even when they were unable to access majority trade
union collective bargaining. Weiler thought it was important that the law inject some form of collective voice into workplaces
to provide workers with at least a taste of solidarity and perhaps also to demonstrate to employers that there are economic
benefits associated *204 with collective dialogue. His solution was to require mandatory workplace committees, funded by
employers, and empowered to engage the employer on various matters in a workplace dialogue. We are already seeing renewed
calls for this sort of collective dialogue in non-union workplaces, and we can expect to see more as the reach of the Wagner
model declines further.
But Weiler also believed that workers, uninterested in or unable to access majority trade union collective bargaining, would
eventually take matters into their own hands through forms of collective resistance that do not depend upon a single trade
union demonstrating majority employee support in a single establishment. It was important that law cultivate and support this
activism through an effective NLRA section 7 right of workers to collectively resist by joining together to confront the employer
through whatever institutional form they so choose or do not choose. Weiler foresaw that the right of workers to engage in
concerted activities outside of traditional Wagner-style collective bargaining would assume greater significance in the future,
as the Wagner model became irrelevant to all but a handful of US workers. He was right.
Similarly, if the difficulty of accessing majority trade union collective bargaining causes Canadian workers and their advocates
to look beyond the Wagner model to satisfy their unmet demand for collective voice, like the workers in the Burton v
Aronovitch McCauley Rollo and Alagano v Miniworld Management cases, for example, they may come to recognize the absence
of a general right of workers to act in concert in Canada in order to improve their bargaining power. I have argued that the law
will fill that void, perhaps in the form of a Canadian version of the NLRA section 7's right to engage in concerted activities for
mutual aid and protection. Protecting a right of workers to raise concerns with their employers as a group without reprisals and
regardless of the institutional vehicle they deploy is the next logical step in the development of FOA in Canada. As Alan Bogg
and Cynthia Estlund noted recently, ‘one need not give up on trade unions and collective bargaining to recognize that workers
need the freedom and the ability to contest employer power even if they do not manage (or choose) to form a union.’ 164 Weiler
recognized this truth, and the absence of protection for a right to act collectively in Canada will become a glaring omission
from our labour code in short order.
What a right to engage in concerted activities would mean in terms of Canadian labour relations is uncertain. At a minimum,
it would protect from reprisals workers like those in the Burton v Aronovitch McCauley Rollo and Alagano v Miniworld
Management cases who come together organically to express concerns about working conditions, even if they do so without
the backing of a trade union. A more challenging question is whether such a right would be accompanied by some form of a
right to strike as it is under section 7 of the NLRA. The emergence of a right to engage in concerted activities will place this
question squarely before our lawmakers and courts. The US experience provides strong evidence that a general right to engage
in work-related concerted activities is *205 no guarantee of an effective collective bargaining regime. Section 7 provides US
workers with expanded rights to act collectively beyond that which exists in Canada, but that right is linked to notoriously weak
protections for strikers, who can be ‘permanently replaced.’ 165 Weiler wanted to replace that rule with an Ontario-inspired
legal right of strikers to return to work within six months of a work stoppage. This would have produced an interesting hybrid
Wagner model of collective voice that empowered both unionized and non-union workers alike. A model like that is certainly
possible in Canada, but whether our laws move in that direction will depend substantially on political economy and power
asymmetries as well as the direction the SCC takes in the next wave of Charter cases that come before it.
David Beatty had faith in the early 1980s that the Charter would chart a path forward for Canadian collective bargaining by
causing a policy ‘conversation’ that would ultimately nudge legislators toward the repeal of the Wagner model and the evolution
of new models that would open up access to collective voice for Canada's most vulnerable workers. While his prognostications
initially appeared to be entirely off base, Canadian labour policy in more recent years has moved slowly in the direction of
Beatty's normative vision. The SCC has not struck down the Wagner model, as Beatty believed it would, and it has rarely
arrived at its conclusions by adopting Beatty's arguments. However, the SCC's decisions have produced labour law outcomes that
align closely with the world that Beatty envisioned. Perhaps more significantly, these decisions have initiated an important and
still unresolved conversation about the meaning and scope of FOA in Canada. Beatty emphasized the need for law to promote
the individual liberty of each worker to choose whether and in what manner they would participate in collective bargaining.
The Wagner model has survived Charter scrutiny, but the SCC's FOA blueprint leaves considerable room for exploration of
alterative models. In the years to come, conversations will only intensify over what those models might look like. It is no longer
out of the question that Beatty's prediction that models of collective bargaining will emerge from the ashes of the Wagner
model that emphasize individual liberty over majoritarianism, and union exclusivity could one day prove prescient.
This is not to suggest that we should now pass the trophy from the Charter sceptics to Beatty and his ‘romantic liberals' or to
Weiler and his ‘pragmatic pluralists.’ My argument in this article is that the debate over the Charter's impact on the future of
Canadian labour law remains very much alive and uncertain. Nor is it clear whether a new model, even one that aligns closely
with Beatty's normative vision, would leave Canadian workers better off. This is to a large extent a matter of faith; reasonable
informed people can disagree. The only thing we can say with strong confidence is that the Wagner model is nearing the end
of its shelf life. Every century reinvents its labour laws, and we are eighty years into a model that now only reaches 10-15 per
cent of private sector workers in Canada and the United States. Change is coming.
*206 I will end where I began, with Harry Arthurs, a giant among giants. Harry posited recently that, in the end, academic
debates about the Charter and the future collective bargaining law will amount to little if our recent descent into a ‘post-
enlightenment, post-liberal, post-democratic era’ continues. 166 A new generation of conservative judges may turn back the
clock, and workers themselves may demonstrate little interest in collective bargaining anyways. In 2018, Arthurs predicted
that ‘collective bargaining as we know it will disappear, that the new labour law will emphasize statutory standards and state
regulation, rather than industrial self- government.’ 167 This is a new and darker twenty-first-century brand of scepticism:
Arthurs's claim is no longer just that judges will fail to use the Charter to promote collective bargaining; it is that hardly anyone
other than a handful of scholars and union leaders will notice or care when collective bargaining disappears altogether.
Footnotes
d1 With thanks to Harry Arthurs, David Beatty, Brian Langille, Rick MacDowell, Roy Adams, and two blind reviewers for helpful
comments and suggestions. This article evolved from a speech presented at the University of British Columbia in 2019 as the HD
Woods Lecture for the Canadian Industrial Relations Association and a 2018 presentation at Harvard Law School entitled ‘Lessons
in Canadian Labor Law for a Clean Slate for Worker Power.’
a1 Associate Professor, York University, Toronto, Canada; Visiting Research Fellow, Harvard Law School; Harvard Labor and Worklife
Program, 2019-20, Cambridge, MA, United States
1 The speech was the HD Woods lecture presented annually at the 1984 Canadian Industrial Relations Association conference, published
as Harry Arthurs, ‘Understanding Understanding: Industrial Relations Research and Policy in Canada from 1969 to 1984 ... and
Beyond’ (1984) 39 Labour/Le Travail 753.
2 HD Woods, Task Force on Labour Relations (Ottawa: Queen's Printer, 1969).
3 Mark Thompson, ‘Wagnerism in Canada: Compared to What?’ in Anthony Giles, Anthony Smith, and Kurt Wetzel, eds, Proceedings
of the XXXIst Conference (Quebec: Canadian Industrial Relations Association, 1995) 59 at 62 [Thompson, ‘Wagnerism in Canada’].
4 Thomas Kochan, Harry Katz & Robert McKersie, The Transformation of America: Industrial Relations (Ithaca: ILR Press, 1994).
5 Harry Arthurs, ‘Labour Law without the State?’ (1996) 46:1 UTLJ 1; Harry Arthurs, ‘Labour Law after Labour’ in Guy Davidov &
Brian Langille, The Idea of Labour Law (Oxford: Oxford University Press, 2011) 13 [Davidov & Langille, Idea of Labour Law].
6 Harry Arthurs, ‘Landscape and Memory: Labour Law, Legal Pluralism, and Globalization’ in Ton Wilthagen, ed, Advancing Theory
in Labour Law in a Global Context (Amsterdam: Royal Netherlands Academy of Arts, 1997) 21 at 25. In declaring the failure of
industrial pluralism, Arthurs joined other prominent Canadian labour law scholars who had long argued similar claims. See e.g. Judy
Fudge & Harry Glasbeek, ‘The Legacy of PC 1003’ (1995) 3 CLELJ 357.
7 See e.g. Harry Arthurs, ‘Charting the Boundaries of Labour Law: Innis Christie and the Search for the Integrated Law of Labour
Market Regulation’ (2011) 34 Dal LJ 1; Harry Arthurs, ‘Labour Law after Labour’ in Davidov & Langille, Idea of Labour Law,
supra note 5, 13; Harry Arthurs, ‘Labour Law and the Law of Economic Subordination and Resistance: A Counterfactual?’ (2012)
Osgoode Hall CLPE Research Paper Series No 10.
8 National Labor Relations Act, 49 Stat 449 (1935) [NLRA].
9 Labour Relations Code, RSBC 1996, c 244.
10 Weiler served as chair of the BC Labour Relations Board from 1973 to 1978. His experiences crafting and then administering the BC
Labour Relations Code are described in Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto:
Carswell, 1980) [Weiler, Reconcilable Differences].
11 Paul Weiler, ‘Promises to Keep: Securing Workers' Rights to Self-Organization under the NLRA’ (1983) 96 Harv L Rev 1769 [Weiler,
‘Promises to Keep’]; Paul Weiler, Governing the Workplace: The Future of Labor and Employment Law (Cambridge, UK: Harvard
University Press, 1990) [Weiler, Governing the Workplace]. See also Paul Weiler, ‘Striking a New Balance: Freedom of Contract
and the Prospects for Union Representation’ (1984) 98 Harv L Rev 351 [Weiler, ‘Striking a New Balance’].
12 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11.
13 David Beatty, Putting the Charter to Work: Designing a Constitutional Labour Code (Montreal & Kingston: McGill-Queen's
University Press, 1987) [Beatty, Putting the Charter to Work]; David Beatty & Steven Kennett, ‘Striking Back: Fighting Words, Social
Protest and Political Participation in the Free and Democratic Societies' (1988) 67 Can Bar Rev 573 [Beatty & Kennett, ‘Striking
Back’]; David Beatty, ‘Shop Talk: Conversations about the Constitutionality of Our Labor Law’ (1989) 27 Osgoode Hall LJ 381
[Beatty, ‘Shop Talk’].
14 Dunmore v Ontario (AG), 2001 SCC 94 [Dunmore]. Labour Relations Act, SO 1995, c 1 [LRA].
15 Harry Arthurs, ‘Of Skeptics and Idealists: Bernie and Me and the Right to Strike’ (2016) 19 CLELJ 327 at 327.
16 I do not address one of the most pressing labour law questions, which is the future of the scope of labour law and the question of
whether the category of ‘employee’ will be expanded to include ‘independent contractors' and other precarious workers who today
fall near or outside the boundaries of some or all of labour law's protections. Judy Fudge, Eric Tucker & Leah Vosko, ‘Employee or
Independent Contractor? Charting the Legal Significance of the Distinction in Canada’ (2003) 10 CLELJ 193; Brian Langille & Guy
Davidov, ‘Beyond Employment and Independent Contractors: A View from Canada’ (1999) 7 Comp Lab L & Pol'y J 21. My focus
is on collective bargaining law, which I believe can easily be adapted to sweep in all manner of worker if the political will exists.
17 Weiler, ‘Promises to Keep,’ supra note 11. See Fred Shapiro & Michelle Pearse, ‘The Most-Cited Law Review Articles of All
Time’ (1992) 110 Mich L Rev 1483 at 1501 (this article was the second most cited law review article ever in labour and employment
law).
18 Weiler, Reconcilable Differences, supra note 10.
19 Weiler, Governing the Workplace, supra note 11 at 10.
20 In his 1980 book about BC labour law (Weiler, Reconcilable Differences, supra note 10 at 48), Weiler favoured the card-check method
of testing employee wishes about unionization over the mandatory vote method. However, by 1990, he had changed his tune and
expressed a preference for the ‘instant ballot’ model, especially for the United States but for Canada as well. Weiler, Governing the
Workplace, supra note 11 at 255.
21 Weiler, Governing the Workplace, supra note 11 at 268; Weiler, ‘Striking a New Balance,’ supra note 11 at 393-4. The decision of
the US Supreme Court in NLRB v Mackay Radio and Tel Co, 304 US 333 (1938), recognized a right of employers to permanently
replace strikers.
22 Weiler, Governing the Workplace, supra note 11 at 269-73. Here too Weiler drew on the Canadian ‘ally doctrine,’ under which striking
employees were permitted to picket third-party businesses that help the struck employer withstand economic pressure arising from
the strike. Weiler explained his position on the ally doctrine and secondary picketing in Weiler, Reconcilable Differences, supra note
10 at 78-85.
24 Ibid at 282.
25 Ibid at 282-95. Employee participation committees (EPCs) would be mandatory in workplaces with twenty-five or more employees.
See also Paul Weiler & Guy Mundlak, ‘New Directions for the Law of the Workplace’ (1993) 102:8 Yale LJ 1907; Weiler, Governing
the Workplace, supra note 11 at 284; Roy Adams, ‘Should Works Councils Be Used as Industrial Relations Policy?’ Monthly Labor
Review (July 1985); Roy Adams, ‘Two Policy Approaches to Labor-Management Decision-Making at the Level of the Enterprise’
in Craig Riddell, ed, Labour-Management Cooperation in Canada (Toronto: University of Toronto Press, 1986) 87; Beatty, Putting
the Charter to Work, supra note 13, as the leading Canadian voices calling for experimentation with forms of works councils in
Canadian labour law.
26 In order to implement mandatory EPCs, Weiler called for a relaxation of the prohibition on ‘company unions' found in section 8(a)(2)
of the NLRA, supra note 8. That law makes it unlawful for an employer to ‘dominate or interfere with the formation or administration
of any labor organization or to contribute financial or other support to it.’ ‘Labor organization’ is then defined broadly to capture
‘any organization of any kind or ... employee representation committee or plan, in which employees participate and which exist for
the purpose, in whole or in part, of dealing with employers concerning ... conditions of work.’ Together, this statutory framework has
been interpreted in a manner that renders any type of employee association unlawful unless it is created and administered without
any employer cooperation or support whatever. Weiler, Governing the Workplace, supra note 11 at 211-18; NLRB v Cabot Carbon,
360 US 203 (1959); NLRB v Newport News Shipbuilding and Drydock Co, 308 US 241 (1939).
27 Weiler, Governing the Workplace, supra note 11 at 217-18.
28 Ibid at 214, n 39. See NLRB v Exchange Parts, 375 US 405 (1964). For a discussion of the treatment of non-union employee
associations in Canadian labour law, see Daphne Taras & Bruce Kaufman, ‘Non-Union Employee Representation in North America:
Diversity, Controversy, and Uncertain Future’ (2006) 37 Indus Rel LJ 513.
29 NLRR v Washington Aluminum Co, 370 US 9 (1962) [Washington Aluminum].
31 Ibid.
32 Cynthia Estlund, ‘The Ossification of American Labor Law and the Decline of Self-Governance in the Workplace’ (2002) 28:4 J
Labor Research 591.
33 See e.g. James Moore & Richard Bales, ‘Elections, Neutrality Agreements, and Card Checks: The Failure of the Political Model of
Industrial Democracy’ (2011) 87 Ind LJ 147 (citing the American Federation of Labor-Congress of Industrial Organizations president
Lane Kirkland, calling for repeal of the NLRA and arguing workers would be ‘better off with the law of the jungle’); David Doorey,
‘Neutrality Agreements: Bargaining for Representation Rights in the Shadow of the State’ (2006) 13:1 CLELJ 41.
34 Janus v American Federation of State, County, and Municipal Employees, Council 31, 138 S Ct 2448 (2018).
35 For example, Harvard Law School's Clean Slate Project final report proposed some standard Canadian-inspired reforms, such
as card-check certification; however, the report's flagship proposals were for a system of ‘graduated’ freedom of association
that included mandatory workplace monitors in every workplace, minority union collective bargaining, and sectoral bargaining.
See Clean Slate for Worker Power: Building a Just Economy and Democracy (January 2019), online: < https://assets.website-
files.com/5ddc262b91f2a95f326520bd/5e28fba29270594b053fe537_CleanSlate_Report_FORWEB.pdf> [Clean Slate for Worker
Power]. See also David J. Doorey, ‘Clean Slate and the Wagner Model: Comparative Labor Law and a New Plurality’ 24
EMPLOYEE RTS. & EMP. POL'Y J. 95 (2020); Kate Adrias & Brishen Rogers, ‘Rebuilding Worker Voice in Today's Economy,’
Roosevelt Institute (August 2018), online: < https://rooseveltinstitute.org/wp-content/uploads/2018/07/Rebuilding-Worker-Voices-
final-2.pdf> [Adrias & Rogers, ‘Rebuilding Worker Voice’] (arguing for many of the same Canadian-inspired proposals as Weiler,
but also calling for sectoral level bargaining).
36 Even Weiler was sceptical of the impact his proposals would have on revitalizing US union density in light of his acknowledgement
that private sector union density was also on the decline in Canada. He noted: ‘[W]hile the present situation of Canadian unions is
far better than that of their US counterparts, the prospects for collective bargaining in the Canadian private sector are not particularly
rosy, despite the more favourable legal framework.’ See Weiler, Governing the Workplace, supra note 11 at 280, n 72. See also Roy
Adams, ‘A Pernicious Euphoria: 50 Years of Wagnerism in Canada’ (1994-5) 3 CLELJ 321 (noting that despite obvious failure
of Wagner model in both countries, proposals in the United States continued to promote Canadian-style reforms rather than more
fundamental changes to the collective bargaining model).
37 Bernie Adell, ‘The Queens University Conference on Labour Law Under the Charter’ (1988) 13 Queens LJ 2; Brian Etherington,
‘An Assessment of Judicial Review of Labour Laws under the Charter: Of Realists, Romantics, and Pragmatists' (1992) 24 Ottawa L
Rev 685 [Etherington, ‘Assessment of Judicial Review’]. The labels were a source of controversy in that they tended to be normative,
reflecting the values of those assigning the labels (at n 2). However, since I am describing the historical debate, I will stick to the
common labels used at the time.
38 Harry Arthurs, ‘The Right to Golf: Reflections on the Future of Workers, Unions, and the Rest of Us under the Charter’ (1988)
13 Queens LJ 17 [Arthurs, ‘Right to Golf’]; Harry Arthurs & Brent Arnold, ‘Does the Charter Matter?’ (2006) 11:1 Rev Const
Stud 37; Harry Arthurs, ‘Constitutionalizing the Right of Workers to Organize, Bargain, and Strike: The Sight of One Shoulder
Struggling’ (2009-10) 15 CLELJ 373. Although writing from a different political economy, Arthurs's Osgoode Hall Law School
colleagues including Harry Glasbeek, Eric Tucker, Judy Fudge, Allan Hutchinson, and Michael Mandel were also placed in the
Charter-sceptic camp. See e.g. Allan Hutchinson, ‘Waiting for Coraf (Or the Beatification of the Charter)’ (1991) 41 UTLJ 332.
Weiler described this group of Osgoode Hall scholars as ‘radical cynics.’ Paul Weiler, ‘The Charter at Work: Reflections on the
Constitutionalizing of Labour and Employment Law’ (1990) 40 UTLJ 144 [Weiler, ‘Charter at Work’].
39 Arthurs, ‘Right to Golf,’ supra note 38 at 18. See also discussion in Etherington, ‘Assessment of Judicial Review,’ supra note 37
at 688-91. As noted earlier, Arthurs has since acknowledged that Supreme Court of Canada (SCC) section 2(d) jurisprudence since
2001 appears to disprove his earlier thesis. Arthurs, ‘Of Skeptics and Idealists,’ supra note 15.
40 Weiler, ‘Charter at Work,’ supra note 38 at 117-212. Weiler identified only himself and his brother Joe Weiler as members of this
camp (at 151), although Etherington argued in a 1992 paper that the pragmatic pluralist camp ‘probably encompasses the bulk of
labour academics and practitioners in this country.’ Etherington, ‘Assessment of Judicial Review,’ supra note 37 at 694, n 27.
41 Weiler, ‘Charter at Work,’ supra note 38 at 151-5; Etherington, ‘Assessment of Judicial Review,’ supra note 37 at at 693-4.
42 Weiler, ‘Charter at Work,’ supra note 38 at 165.
43 Etherington suggested that the ‘romantic liberal’ camp was ‘perhaps limited to Beatty and his University of Toronto colleagues Brian
Langille and Steven Kennett.’ Etherington, ‘Assessment of Judicial Review,’ supra note 37 at 693, n 27.
44 Beatty, Putting the Charter to Work, supra note 13; Beatty & Kennett, ‘Striking Back,’ supra note 13; Beatty, ‘Shop Talk,’ supra
note 13.
45 Beatty, ‘Shop Talk,’ supra note 13 at 425.
46 Ibid at 152: ‘Unless the basic principle of exclusivity, on which our system of collective bargaining is predicated, is radically
reformulated it is unlikely that those who are already among the most disadvantaged members of our labour force will ever be
protected by a system of industrial governance.’
47 Beatty, Putting the Charter to Work, supra note 13 at 117, 123. Here, Beatty referenced the influential work of Alexis de Tocqueville,
Democracy in America (Garden City, NY: Doubleday & Company, 1969) [de Tocqueville, Democracy in America].
48 Beatty's emphasis on equality of individual liberty to choose how and whether to participate with coworkers in collective action
aligns closely with the more recent argument by Bogg and Estlund in favour of constructing freedom of association (FOA) upon a
normative foundation of individual liberty as non-domination and the right to contest employer decisions both as an individual and
collectively alongside coworkers. Alan Bogg & Cynthia Estlund, ‘Freedom of Association and the Right to Contest: Getting Back
to Basics' in Tonia Novitz & Alan Bogg, eds, Voices at Work (Oxford: Oxford University Press, 2014) [Bogg & Estlund, ‘Freedom
of Association’].
49 Beatty, Putting the Charter to Work, supra note 13, especially ch 13.
50 Ibid at 122 [emphasis in original].
51 Ibid at 126-7. Beatty argued that mandatory union dues clauses and the Rand formula would survive a Charter challenge insofar
as the mandatory dues went toward ‘industrial government’ but that forcing employees to fund union activities unrelated to that
objective was contrary to the Charter. He supported the decision of the Ontario Supreme Court in Lavigne v Ontario Public Service
Employees Union (1986), 55 OR (2d) 449 (SC) striking down the mandatory payment of the share of union dues spent on non-
collective bargaining-related activities violated freedom of association (at 122, n 14). That decision was reversed by the SCC. Lavigne
v Ontario Public Service Employees Union, [1991] 2 SCR 211 [Lavigne].
52 Beatty, Putting the Charter to Work, supra note 13 at 144-55.
53 Ibid at 149.
54 Ibid at 180.
55 Ibid at 149: ‘It is most likely that our policy-makers would endeavor to incorporate either of the principles of voluntary or plural
representation into our established structures of collective bargaining, rather than bringing over one of the European systems as a
whole.’
56 Ibid at 151.
57 See discussion in ibid at 182-4, responding to the anticipated argument that the executive and legislative branches are more likely to
respond by enacting ‘some other rule even more prejudicial to the interests of workers.’
58 [1986] 2 SCR 573 (Charter does not apply to common law rules restricting picketing).
59 Reference re Alberta Public Service Employee Relations Act, [1987] 1 SCR 313; PSAC v Canada, [1987] 1 SCR 424; RWDSU v
Saskatchewan, [1987] 1 SCR 460 [Labour trilogy] (no Charter-protected right to strike).
60 [1990] 2 SCR 367 [PIPS] (no Charter right to collective bargaining).
61 Lavigne, supra note 51 (union expenditures on non-collective bargaining related activities against wishes of dues payers not a violation
of Charter).
62 Also, in McKinney v University of Guelph, [1990] 3 SCR 229 [McKinney], the SCC upheld the practice of mandatory retirement
contrary to Beatty's prediction. Beatty's argument that the exclusion of agricultural workers from collective bargaining legislation
would be struck down as contrary to FOA would also likely have been rejected in Cuddy Chicks Ltd v Ontario (Labour Relations
Board), [1991] 2 SCR 5, had the short-lived Ontario Agricultural Labour Relations Act, SO 1994, c 6 [ALRA], not been enacted. It is
realistic to assume that the labour board hearing the argument in 1992 would have applied the reasoning in the Labour trilogy cases
and in PIPS, supra note 60, and ruled that the exclusion did not violate a Charter-protected right or freedom extended to collective
bargaining rights to agricultural workers. See discussion of this background in Dunmore, supra note 14 at paras 90-6.
63 Beatty & Kennett, ‘Striking Back,’ supra note 13.
64 David Beatty, ‘Labouring outside the Charter’ (1991) 29 Osgoode Hall LJ 839 at 861 [Beatty, ‘Labouring’].
65 Beatty, ‘Labouring,’ supra note 64 at 842.
66 Etherington, ‘Assessment of Judicial Review,’ supra note 37 at 726, 727. See also Michael MacNeil, ‘Review: Peevish Propensities
and Perverse Proclivities: Unions, Courts, and Constitutional Labour Codes' (1990) 40 UTLJ 813; Donald Carter, ‘Canadian Labour
Relations under the Charter: Exploring the Implications' (1988) 43 RI 305.
67 For a summary of the key decisions, see David Doorey & Benjamin Oliphant, ‘The Charter and the Law of Work’ in David Doorey,
The Law of Work, 2d ed (Toronto: Emond Publishing, 2020), ch 39 [Doorey, Law of Work].
68 Dunmore, supra note 14 at 51. Beatty, Putting the Charter to Work, supra note 13 at 89-92.
69 Ibid at paras 52, 55.
70 [2007] 2 SCR 391 [Health Services].
71 Health Services, ibid, attracted substantial academic commentary. See e.g. Roy Adams, ‘Prospects for Labour's Right to Bargain
Collectively after B.C. Health Services' (2009) 59 UNBLJ 85; Jamie Cameron, ‘Due Process, Collective Bargaining, and s. 2(d)
of the Charter: A Comment on B.C. Health Services' (2006-7) 13 CLELJ 233; Brian Etherington, ‘The B.C. Health Services and
Support Decision: The Constitutionalization of a Right to Bargain Collectively in Canada: Where Did It Come from and Where Will
It Lead?’ (2009) 30 Comp Lab L & Pol'y J 715; Judy Fudge, ‘The Supreme Court of Canada and the Right to Bargain Collectively:
The Implications of the Health Services and Support case in Canada and Beyond’ (2008) 25 Indus Rel LJ 37; Brian Langille, ‘The
Freedom of Association Mess: How We Got into It and How We Can Get Out of It’ (2009) 54 McGill LJ 177 [Langille, ‘Freedom
of Association Mess'].
72 2011 SCC 20, [2011] 2 SCR 3 [Fraser]. Judy Fudge, ‘Constitutional Rights, Collective Bargaining and the Supreme Court of Canada:
Retreat and Reversal in the Fraser Case’ (2012) 41:1 Indus Rel LJ 1.
73 Agricultural Employees Protection Act, SO 2002, c 16 [AEPA].
74 Ibid, ss 6, 7.
75 The primary Canadian collective bargaining statutes in each jurisdiction protect employees who join ‘trade unions' and participate in
‘trade union activities' and grant rights and impose obligations on ‘trade unions' rather than ‘employee associations' writ large. See
discussion in David Doorey, ‘Graduated Freedom of Association: Employee Voice beyond the Wagner Model’ (2005) 30:2 Queens
LJ 500 [Doorey, ‘Graduated Freedom of Association’]; Bogg & Estlund, ‘Freedom of Association,’ supra note 48; Brishen Rogers
& Simon Archer, ‘Protecting Concerted Action outside the Union Context’ (2016) 20:1 CLELJ 141 [Rogers & Archer, ‘Protecting
Concerted Action’].
76 AEPA, supra note 73, s 2(1) [emphasis added]. Canadian legislation regulating collective worker activities in the 1930s and 1940s
did not single out ‘trade unions' as the vehicle through which workers would associate but rather referred to ‘combinations of
employees' (Criminal Code, RSC 1939, c 30, s 502-A), ‘associations of employees' (Collective Bargaining Act, SO 1943, c 4) or
identified both ‘trade unions' or ‘employees' organizations' (Wartime Labour Relations Regulations, PC 1003, s 4) as possible vehicles
for collective worker activities. By the 1950s, provincial collective bargaining legislation had dropped the reference to ‘employees
associations' and protected exclusively ‘trade unions' and ‘trade union’ activities.
77 NLRA, supra note 8, s 7 guarantees employees ‘the right to self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection’ or ‘to refrain from any or all such activities.’
78 Fraser, supra note 72 at para 103: ‘The first consideration is the principle that a statute should be interpreted in a way that gives
meaning and purpose to its provisions. This requires us to ask what the purpose of the requirements in ss. 5(6) and (7) is. There can
only be one purpose for requiring the employer to listen to or read employee representations - to assure that the employer will in
fact consider the employee representations. No labour relations purpose is served merely by pro forma listening or reading. To fulfil
the purpose of reading or listening, the employer must consider the submission. Moreover, the employer must do so in good faith:
consideration with a closed mind would render listening or reading the submission pointless.’
79 For a discussion of the argument about whether the SCC was constitutionalizing the Wagner model, see especially Brian Langille,
‘Why Are Canadian Judges Drafting Labour Codes - and Constitutionalizing the Wagner Act Model?’ (2009-10) 15 CLELJ 101
[Langille, ‘Canadian Judges'].
80 Fraser, supra note 72 at para 42.
81 Mounted Police Association of Ontario v Canada (AG), 2015 SCC 1 at para 47, [2015] 1 SCR 3 [Mounted Police Association]. But
see Brian Langille, ‘The Condescending Constitution (or, the Purpose of Freedom of Association Is Freedom of Association’ (2016)
19 CLELJ 335 (arguing that in fact the court applied an instrumental and not a purposive approach).
82 Beatty, Labouring, supra note 64 at 850: ‘[I]n the Labour Trilogy, the majority of the Court opted for a minimalist construction of
section 2(d) which is the antithesis of the conventional (purposeful) approach used in the interpretation of constitutional texts. It
simply assumed that the narrowest range of activities related to the organization and objectives of an association was the exhaustive
definition of the text. No explanation was offered as to why the words ‘freedom of association’ should not be defined in terms of
the larger purposes which the Charter was meant to serve, like any other constitutional guarantee.'
83 Mounted Police Association, supra note 81 at para 96.
84 Ibid at paras 94, 98.
85 Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245 [Saskatchewan Federation of Labour].
86 Ibid at para 46.
87 Ibid at para 78.
88 Ibid at paras 57, 72-4.
89 Beatty & Kennett, ‘Striking Back,’ supra note 13 at 587.
90 Ibid at 586-93.
91 Langille, ‘Freedom of Association Mess,’ supra note 71 at 183-8; Langille, ‘Canadian Judges,’ supra note 79.
92 Saskatchewan Federation of Labour, supra note 85 at paras 75, 77; Mounted Police Association, supra note 81 at para 54.
93 See Saskatchewan Federation of Labour, supra note 85 at para 45 (noting that while the Wagner model is not ‘the only model
available ... it is the prevailing model in this country and the one under the s. 2(d) microscope in this case.’
94 R v Advance Cutting & Coring Ltd, 2001 SCC 70, [2001] 3 SCR 209. Ultimately, the Court nevertheless upheld a Quebec law
requiring workers join one of several construction unions as a reasonable and justified limitation pursuant to section 1. See Ravi
Malhotra, ‘Karl Klare's Vision of Democratization in the Workplace and the Contradictory Evolution of Labour Law Jurisprudence
in the Supreme Court of Canada’ (2015) 45:2 Ottawa L Rev 305 at 317-25.
95 RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, [2002] 1 SCR 156.
96 See e.g. Paul Cavalluzzo, ‘The Impact of Saskatchewan Federation of Labour on Future Constitutional Challenges to Restrictions
on the Right to Strike’ (2016) 19:2 CLELJ 463.
97 See e.g. Mounted Police Association, supra note 81 at para 93: ‘This Court has consistently held that freedom of association does
not guarantee a particular model of labour relations.’ Delisle v Canada (Deputy AG), [1999] 2 SCR 989 at para 33 [Delisle]; Health
Services, supra note 70 at para 91; Fraser, supra note 72 at para 42. What is required is not a particular model but, rather, a regime
that does not substantially interfere with meaningful collective bargaining and thus complies with section 2(d).
98 Fraser, supra note 72 at para 47.
99 See e.g. Adrias & Rogers, ‘Rebuilding Worker Voice,’ supra note 35; Clean Slate for Worker Power, supra note 35; Diane
MacDonald, ‘Sectoral Certification: A Case Study of British Columbia’ (1997) 5 CLELJ 243; Sara Slinn, ‘Broader-based and
Sectoral Bargaining Proposals in Collective Bargaining Law Reform: A Historical Review’ (2020) 85 Labour/Le Travail 13; Joseph
Rose, ‘Reforming the Structure of Collective Bargaining: Lessons from the Construction Industry’ (2013) 17 CLELJ 403. For older
Canadian proposals for sectoral bargaining, see John Baigent, Vince Ready & Tom Roper, Recommendations for Labour Law Reform:
A Report to the Honourable Moe Sihota, Minister of Labour (Victoria: Queens Printer, 1992); International Ladies' Garment Workers'
Union and Intercede, ‘Meeting the Needs of Vulnerable Workers: Proposals for Improved Employment Legislation and Access
to Collective Bargaining for Domestic Workers and Industrial Homeworkers' (February 1993) [Intercede, ‘Meeting the Needs of
Vulnerable Workers'].
100 See e.g. Jean-Guy Bergeron & Dianne Veilleux, ‘The Québec Collective Agreement Decrees Act: A Unique Model of Collective
Bargaining’ (1996) 22 Queen's LJ 135.
101 See Clean Slate for Worker Power, supra note 35; Doorey, ‘Graduated Freedom of Association,’ supra note 75; Roy Adams,
‘Bringing Canada's Wagner Act Regime into Compliance with International Human Rights Law and the Charter’ (2015-16) 19:2
CLELJ 365 [Adams, ‘Canada's Wagner Act Regime’]; Catherine Fisk & Xenia Tashlitsky, ‘Imagine a World Where Employers Are
Required to Bargain with Minority Unions' (2011) 27:1 American Bar Association J Labor and Employment L 1.
102 Kevin Burkett, ‘The Politicization of the Ontario Labour Relations Framework in the 1990s' (1998) 6 CLELJ 161.
103 Recent experiences in Ontario and Alberta are demonstrative of a national pattern since the 1990s. In both provinces, relatively modest
labour law reforms aimed at facilitating collective bargaining were immediately repealed by newly elected Progressive Conservative
and United Conservative Party governments in Ontario and Alberta, respectively. Conservatives have demonstrated no interest in
facilitating greater private sector collective bargaining access and are more focused on weakening public sector collective bargaining,
the last bastion of the Wagner model.
104 Michael Mitchell & John C Murray, The Changing Workplace Review: Final Report (May 2017),
online: <www.ontario.ca/document/changing-workplaces-review-final-report/chapter-11-access-meaningful-collectivebargaining-
decision-unionize#section-5> [Mitchell & Murray, Changing Workplaces Review].
105 Ibid, ch 11.6.
106 Clean Slate for Worker Power, supra note 35.
107 My thanks to Brian Langille and Rick MacDowell for suggesting this conceptualization of the issues.
108 ‘Domestic workers' is a common category of exclusion in Canadian labour legislation. See e.g. LRA, supra note 14, s 3. The exclusion
of lawyers ‘employed in a professional capacity’ found at s. 1(3)(a) of the Ontario LRA is the subject of an ongoing Section 2(d)
Charter challenge, as discussed below: UFCW v MedReleaf Phase 2, 2020 ONAFRAAT 8 [MedReleaf].
109 Beatty, Putting the Charter to Work, supra note 13 at 89. Beatty also argued that statutory exclusions from other protective
employment-related statutes would also be struck down. He used the example of the exclusion of domestic workers from employment
standards legislation as an example (at 92-3). So far, the SCC has refused to recognize occupational category as an analogous ground
under section 15.
110 Beatty, Putting the Charter to Work, supra note 13 at 90.
111 Although the Wagner model is not an obvious fit for domestic workers who work alone in the employer's home. See discussion in
Intercede, ‘Meeting the Needs of Vulnerable Workers,’ supra note 99.
112 Doorey, ‘Graduated Freedom of Association,’ supra note 75.
113 United Food and Commercial Workers International Union v MedReleaf Corp, 2018 ONAFRAAT 12 [UFCW International Union].
Section 5(1) of the AEPA, supra note 73, provides as follows: ‘The employer shall give an employees' association a reasonable
opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are
employed by that employer.’
114 But see Adams, ‘Canada's Wagner Act Regime,’ supra note 101 at 387, arguing that pursuant to the reasons in Fraser and SFL, the
AFRAAT is empowered to order a broad remedy in the event an agricultural employer covered by the AEPA failed to bargain in good
faith within the meaning of that statute, which ‘included the options of ordering that the issues in dispute be settled at arbitration or
forbidding the employer to sanction workers because they had engaged in a strike.’
115 See e.g. Adams, ‘Canada's Wagner Act Regime,’ supra note 101.
116 MedReleaf, supra note 108.
117 Ibid at para 96.
119 Ibid.
120 In another case, Ontario Public Service Employees Union v Durham Community Legal Clinic, OLRB Case No 2361-19-R, the union
has challenged the exclusion of lawyers from the Ontario Labour Relations Act as a violation of section 2(d). At the time of writing,
this argument was expected to be heard in late 2020 or early 2021.
121 ALRA, supra note 62. It was the repeal of this statute that led to Dunmore, supra note 14.
122 Maybe Ontario's Progressive Conservative government under Premier Doug Ford will use the Charter's ‘notwithstanding clause’ to
preserve the AEPA' s ‘no strike’ model, but I will leave out a discussion of that option.
123 See Fraser, supra note 72; Saskatchewan Federation of Labour, supra note 85. See also discussion in David J. Doorey, ‘Clean Slate
and the Wagner Model: Comparative Labor Law and a New Plurality’ 24 EMPLOYEE RTS. & EMP. POL'Y J. 95 (2020).
124 See Restoring Balance in Alberta's Workplaces Act, 2020, SA 2020, c 28, s 11(9). Beatty supported a ban on mandatory membership
clauses and mandatory union dues put toward non-collective bargaining activities. But the devil is in the details. Beatty argued that
all bargaining unit employees should be required to fund their share of dues spent on the objectives of ‘industrial government’ over
which unions are granted bargaining authority, which extends beyond purely collective bargaining purposes and includes lobbying
for policies that affect the lives of working people. Beatty, Putting the Charter to Work, supra note 13 at 126-8. Insofar as Canadian
political parties seek to restrict the use of union dues to purely collective bargaining and collective agreement administration, they
would conflict with Beatty's vision. The SCC upheld a collective agreement term requiring employees to pay their share of dues put
toward political cause in Lavigne, supra note 51. The proposed Alberta law would raise a related though different legal question of
whether the state can require explicit opt-in of payment of such fees.
125 An Act to amend the Income Tax Act (requirements for labour organizations), SC 2015, c 41, repealed by An Act to amend the Canada
Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax
Act, SC 2017, c 12. See discussion in Andrew Stevens & Sean Tucker, ‘Working in the Shadows for Transparency: Russ Hiebet,
LabourWatch, Nanos Research, and the Making of Bill C-377’ (2015) 75 Labour/Le Travail 133.
126 Bill 64, Defending Employees' Rights Act (Collective Bargaining and Financial Disclosure by Trade Unions, 2013), 2nd Sess, 40th
Parl, Ontario, 2013 (first reading 1 May 2013) was introduced by maverick Member of the Provincial Parliament Randy Hillier, who
has since been expelled from the Conservative Party.
127 The ‘Rand formula’ refers to the decision of Justice Ivan Rand in 1946 (Ford Motor Company v United Automobile Workers Union,
[1946] OLAA No 1) ordering that all members of a unionized bargaining unit pay an equal share of union dues. That requirement was
later incorporated in various formulations into Canadian collective bargaining statutes. Today, it appears in section 47 of the Ontario
Labour Relations Act, SO 1995, c 1, Sch A. See discussion in Doorey, Law of Work, supra note 67 at 486-7.
128 Brian Langille & Joshua Mandryk, ‘Majoritarianism, Exclusivity, and the “Right to Work”: The Legal Incoherence of Ontario Bill
64’ (2013) 17 CLELJ 475. Hillier claimed at the time that the bill represented Conservative policy. The Conservatives lost the election.
129 See e.g. Roy Adams, ‘A Pernicious Euphoria: 50 Years of Wagnerism in Canada’ (1994-5) 3 CLELJ 321.
130 Bernie Adell, ‘Establishing a Collective Employee Voice in the Workplace: How Can the Obstacles Be Lowered?’ in Essays in Labour
Relations Law: Papers Presented at the Conference on Government and Labour Relations: The Death of Voluntarism (Don Mills,
ON: CCH Canadian, 1984) 3 [Adell, ‘Establishing a Collective Employee Voice’].
131 See e.g. Doorey, ‘Graduated Freedom of Association,’ supra note 75. See also Clean Slate for Worker Power, supra note
35 (proposing a similar model of graduated collective bargaining); Employment and Social Development Canada (ESDC),
Report of the Expert Panel on Modern Federal Labour Standards (January 2020), Recommendation 25, online: <www.canada.ca/
en/employment-social-development/services/labour-standards/reports/expert-panel-final.html#h2.4> [ESDC, Report of the Expert
Panel] (recommending the government study options for a model of graduated FOA). See also Thompson, ‘Wagnerism in Canada,’
supra note 3 (arguing for graduated collective employee rights that thicken as employee support grows but as an alternative to the
Wagner model rather than a complement to it).
132 Harry W Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Gatineau: Government of Canada, 2006) at
128-35.
133 Mitchell & Murray, Changing Workplaces Review, supra note 104 at 89-93. The recent Clean Slate for Worker Power project in the
United States similarly called for mandatory ‘works councils' whenever ever three or more workers requested one in their proposals
to renew US labour law. Clean Slate for Worker Power, supra note 35 at 33.
134 Burton v Aronovitch McCauley Rollo LLP, 2018 ONSC 3018. See also David Doorey, ‘A Wrongful Dismissal Case and the Absence
of a Right of Employees to Act Collectively,’ Law of Work Blog (28 August 2018), online: < http://lawofwork.ca/?p=9509>.
135 This passage is from a decision on costs. Burton v Aronovitch McCauley Rollo LLP, 2018 ONSC 5030 at para 9.
136 See e.g. Citizens Investment Service Corp v NRLB, 430 F (3d) 1195 (DDC 2005) (when an individual worker complains about pay
practices, it is concerted activity if the complaint is shared by other coworkers).
137 Brockton Hospital v NLRB, 294 F (3d) 100 at 106-7 (DC Cir 2002); Wilson Trophy Co v NLRB, 989 F (2d) 1502 at 1510 (8th Cir
1993). See also Cynthia Estlund, ‘Extending the Case for Workplace Transparency to Information about Pay’ (2014) 4 UC Irvine
L Rev 781 at 788-9.
138 The classic example of the NLRA's section 7 application to non-union workers is represented in the 1962 US Supreme Court decision
in Washington Aluminum, supra note 29, where an employer was held to have unlawfully terminated a group of non-union workers
who engaged in a wildcat strike in protest of cold factory temperatures. The section 7 right to engage in ‘concerted activities for
mutual aid’ protected the non-union employees' right to strike and to be free from employer reprisals for acting collectively in relation
to working conditions. The workers were ordered reinstated.
139 For a discussion of the difference between the NLRA's section 7 right to engage in concerted activities for mutual aid and the Canadian
‘right to engage in trade union activities,’ see Doorey, ‘Graduated Freedom of Association,’ supra note 75; Rogers & Archer,
‘Protecting Concerted Action,’ supra note 75; Bogg & Estlund, ‘Freedom of Association,’ supra note 48.
140 See e.g. LRA, supra note 14, Sch A, ss 70, 72, 76.
141 Alagano v Miniworld Management, [1994] OLRB Rep 455.
142 Ibid at para 3.
145 This would call for a distinction in how ‘trade union’ is defined for different purposes in the legislation. In terms of the application
of unfair labour practices, it would call for a very broad interpretation of ‘trade union’ to include within it any collective worker
activities through a union or otherwise. However, for the purposes of defining what constitutes a ‘trade union’ capable of being
certified as the exclusive bargaining representative of employees, a more restrictive definition would apply. See Doorey, ‘Graduated
Freedom of Association,’ supra note 75 at 522.
146 Canadian labour legislation in the 1930s and 1940s more closely mirrored the NLRA's section 7 language. For example, amendments
to the Criminal Code in 1939 introduced an offence for reprisals by employers against employees who combined ‘for the purpose of
advancing in a lawful manner their interests and organized for their protection in the regulation of wages and conditions of work.’
Criminal Code, RSC 1939, c 30, s 502-A. That language, which was introduced just four years after the passage of the Wagner Act,
mirrored the NLRA's section 7 quite closely in protecting workers who engage in concerted activities. Prior to the 1950s, collective
bargaining legislation, including the formative Order in Council PC 1003 (1944), protected employees from reprisals for acting
collectively through either trade unions ‘or other employee associations.’ However, by the 1950s, Canadian collective bargaining
legislation had dropped references to ‘other employee associations.’ From that point forward, Canadian legislation focused exclusively
on ‘trade union’ activity, whereas in the United States, the NLRA's section 7 application to collective worker activities writ large was
clarified and expanded upon. Washington Aluminum, supra note 29. Canada's approach more closely resembles the British model in
this respect, which also protects reprisals only for ‘trade union’ activities. See Bogg & Estlund, ‘Freedom of Association,’ supra
note 48.
147 See Adell, ‘Establishing a Collective Employee Voice,’ supra note 130. In his proposal, ‘employees covered by a minority certification
would have the right to strike, and the employer would have the right to lock them out, if a collective agreement were not reached
through bargaining and conciliation or mediation’ (at 9).
148 Weiler, Reconcilable Differences, supra note 10 at 69.
149 See e.g. Doorey, ‘Graduated Freedom of Association,’ supra note 75 at 524-30 (arguing in favour of a NLRA section 7-like right
in Canadian labour law as a tool to help instantiate access to collective bargaining as described in SCC s 2(d) decisions); Rogers &
Archer, ‘Protecting Concerted Action,’ supra note 75 (arguing in favour of a right to concerted activities in Canada); also Bogg &
Estlund, ‘Freedom of Association,’ supra note 48 (arguing in favour of a protected right to collectively ‘contest’ employer decisions).
150 RSC 1985, c L-2. ESDC, Report of the Expert Panel, supra note 131, Recommendation 25.
151 See e.g. the submissions of the United Steelworkers at 2, online: University of Toronto < https://cirhr.library.utoronto.ca/sites/cirhr-
edit.library.utoronto.ca/files/ontario_workplace_review_phase2/United%20Steelworkers%CC20%CC281%29.pdf>.
152 Benjamin Sachs & Sharon Block, ‘Epic Fall Out: The Supreme Court and Concerted Activity,’ OnLabor (23 May 2018), online: <
https://onlabor.org/epic-fall-out-scotus-and-concerted-activity/>.
153 See discussion of the importance of section 7 to concerted activities outside of traditional trade unionism in Paul Secunda et al,
Mastering Labor Law (Durham, NC: Carolina Academic Press, 2014) at 69; David Doorey, ‘What Recent Strikes in U.S. at Whole
Foods, Amazon Disclose About Canadian Labour Law,’ Canadian Law of Work Forum (1 April 2020), online: < http://lawofwork.ca/?
p=12181>.
154 Beatty, Putting the Charter to Work, supra note 13 at 117, 123. Here, Beatty referenced the influential work of Alexis de Tocqueville.
De Tocqueville, Democracy in America, supra note 47.
155 Beatty, Putting the Charter to Work, supra note 13 at 121; Dunmore, supra note 14 at para 22.
156 Bogg & Estlund, ‘Freedom of Association,’ supra note 48; Langille, ‘Freedom of Association Mess,’ supra note 71.
157 Janice Fine, ‘New Forms to Settle Old Scores: Updating the Worker Centre Story in the United States' (2011) 66 RI 604; Kate
Griffith, ‘Worker Centers and Labor Law Protections: Why Aren't They Having Their Cake’ (2015) 36 BJELL 331. Between 1990
and 2004, 778 section 7 complaints were filed with the National Labor Relations Board. Between 2005 and 2019, the number of
complaints vaulted to 4,124. ESDC, Report of the Expert Panel, supra note 131, Figure 18.
158 But recall the decision of the AFRAAT in MedRelief, supra note 116, finding that agricultural workers covered by the AEPA have a
‘right to strike’ unaccompanied by a legally protected right to reinstatement regardless of whether they are represented by a majority
trade union. The AEPA is not a Wagner model statute.
159 ESDC, Report of the Expert Panel, supra note 131.
160 Doorey, ‘Graduated Freedom of Association,’ supra note 75; Rogers & Archer, ‘Protecting Concerted Action,’ supra note 75.
161 See e.g. Egg Films Inc v Nova Scotia (Labour Board), 2014 NSCA 33 (approving labour board's broad purposive approach to the
definition of ‘employee’ in the province's labour legislation that consider ‘Charter values' and the SCC's recognition of a right to
collective bargaining).
162 See Delisle, supra note 97 at para 32; Doorey, ‘Graduated Freedom of Association,’ supra note 75 at 524-5.
163 See discussion in Brian Langille & Ben Oliphant, ‘The Legal Structure of Freedom of Association’ (2014) 40:1 Queen's LJ 249
(arguing that questions like these ‘cannot be avoided’ as a result of the SCC's approach to FOA since 2001).
164 Alan Bogg & Cynthia Estlund, ‘The Right to Strike and Contestatory Citizenship’ in Hugh Collins, Gillian Lester & Virginia
Mantouvalou, eds, Philisophical Foundations of Labour Law (Oxford: Oxford University Press, 2018) 229 at 242.
165 A ‘permanently replaced’ worker retains a legal right to be recalled if and when a vacancy later arises.
166 Harry Arthurs, ‘Labour Law in Post-Democratic and Post-Liberal Societies: A Case of Cognitive Dissonance’ (Paper delivered at
the Law & Society Conference, Toronto, 7 June 2018) [unpublished], online: SSRN < https://ssrn.com/abstract=3228089 or http://
dx.doi.org/10.2139/ssrn.3228089>.
167 Ibid.
71 UTORLJ 165
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Reflecting Back on the Future of Labour Law

71 U. Toronto L.J. 165

University of Toronto Law Journal

Reflecting Back on the Future of Labour Law d1

Copyright © 2021 by University of Toronto Press; David J Doorey

a. the ‘sceptics' (or realists), starring Harry Arthurs;

b. the ‘romantic liberals,’ starring David Beatty; and

c. the ‘pragmatic pluralists,’ starring Paul Weiler. 37

A BEATTY: PUTTING THE CHARTER TO WORK

B THE REDEMPTION OF DAVID BEATTY?

• A requirement for employers to give an employees' association a reasonable opportunity to make

IV Tsunamis, legal foreshocks, and the future of Canadian labour law

A FORESHOCKS TO THE LEGAL MODELS GOVERNING

*192 B LEGAL FORESHOCKS TO THE WAGNER MODEL ITSELF

1 Proposals for complementary forms of worker voice

2 A Canadian right to engage in concerted activities

3 A right to engage in concerted activities as a ‘conversation’ starter

2 HD Woods, Task Force on Labour Relations (Ottawa: Queen's Printer, 1969).

8 National Labor Relations Act, 49 Stat 449 (1935) [NLRA].

9 Labour Relations Code, RSBC 1996, c 244.

18 Weiler, Reconcilable Differences, supra note 10.

19 Weiler, Governing the Workplace, supra note 11 at 10.

23 Weiler, Governing the Workplace, supra note 11 at 291.

27 Weiler, Governing the Workplace, supra note 11 at 217-18.

29 NLRR v Washington Aluminum Co, 370 US 9 (1962) [Washington Aluminum].

30 Weiler, Governing the Workplace, supra note 11 at 290.

42 Weiler, ‘Charter at Work,’ supra note 38 at 165.

45 Beatty, ‘Shop Talk,’ supra note 13 at 425.

50 Ibid at 122 [emphasis in original].

52 Beatty, Putting the Charter to Work, supra note 13 at 144-55.

60 [1990] 2 SCR 367 [PIPS] (no Charter right to collective bargaining).

63 Beatty & Kennett, ‘Striking Back,’ supra note 13.

65 Beatty, ‘Labouring,’ supra note 64 at 842.

69 Ibid at paras 52, 55.

70 [2007] 2 SCR 391 [Health Services].

73 Agricultural Employees Protection Act, SO 2002, c 16 [AEPA].

80 Fraser, supra note 72 at para 42.

83 Mounted Police Association, supra note 81 at para 96.

84 Ibid at paras 94, 98.

86 Ibid at para 46.

87 Ibid at para 78.

88 Ibid at paras 57, 72-4.

89 Beatty & Kennett, ‘Striking Back,’ supra note 13 at 587.

98 Fraser, supra note 72 at para 47.

105 Ibid, ch 11.6.

106 Clean Slate for Worker Power, supra note 35.

110 Beatty, Putting the Charter to Work, supra note 13 at 90.

112 Doorey, ‘Graduated Freedom of Association,’ supra note 75.

116 MedReleaf, supra note 108.

117 Ibid at para 96.

118 Ibid at para 97.

141 Alagano v Miniworld Management, [1994] OLRB Rep 455.

142 Ibid at para 3.

143 Ibid at para 13.

144 Ibid at para 16.

148 Weiler, Reconcilable Differences, supra note 10 at 69.

159 ESDC, Report of the Expert Panel, supra note 131.

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