Back to the Future of Canadian Labour Law

The invitation to present the 2019 H.D. Woods lecture came with a proposed subject: The Future of Canadian Labour Law. A wiser person may have suggested something else, something less prone to fail the test of time. However, that person is not me, and while I will eventually address the question I was assigned, I will beg your patience because it will take me a while to get there. That is because I intend to start back in the 1980s, right around when Professor Harry Arthurs gave his 1984 H.D. Woods lecture, and work forward to my ultimate conclusion that important clues about “the future of Canadian labour law” lurk in two big debates that occupied legal and industrial relations scholars in Canada through that decade. The first debate engaged comparative labour law and the question of how to restore access to collective voice for U.S. workers at a time when private sector union density there sat at about 15 percent, approximately the rate in Canada today. The second debate concerned the potential impacts on the laws of work of the newly enacted Charter of Rights and Freedoms. Two prominent former students of Arthurs will play prominent roles in my talk today. The first is Paul Weiler, a labour law legend here in British Columbia, where he helped draft the Labour Relations Code and then served as Chair of the B.C. Labour Board in the late 1970s, before leaving to become the first Canadian with a tenured position at Harvard Law School. Weiler’s proposals to create a sort of hybrid Wagner Model that combined features of the Canadian and U.S. versions may attract renewed interest on this side of the border as Canadian private sector union density continues its steady decline. The second is David Beatty, who presented the H.D. Woods Lecture in 1987 and taught me Labour Law in 1990. Beatty’s predictions for a post-Charter labour law revolution were initially mocked. However, more recently, the arc of Charter jurisprudence has shifted towards Beatty’s normative vision. In 1984, Paul Weiler published his famous Harvard Law Review article “Promises to Keep: Securing Workers’ Rights to Self-Organization under the NLRA” (“Promises to Keep”). That article, and related work, influenced a generation of U.S. labour law scholars and policy-thinkers. Weiler was writing at a moment when labour law and collective bargaining were widely recognized to be in crisis in the U.S. Private sector union density there had fallen from near 40 percent in the 1950s to about 15 percent in the early 1980s and Weiler predicted, correctly as it turned out, that union density would fall below 10 percent by the turn of the century. His mission was to restore access to worker voice in the U.S. through collective bargaining, and he had some ideas on how to achieve this drawn from his extensive Canadian experience. His thesis was straightforward. Weiler believed that much of the problem of declining collective bargaining coverage in the U.S. could be attributed to poorly designed labour laws. Therefore, he proposed a series of Canadian-inspired reforms to the National Labor Relations Act (NLRA). One batch of proposals aimed at improving the operation of the U.S. Wagner Model to enable easier access to union certification. For example, Weiler proposed Canadian style ‘instant certification ballots’ to replace the months’ long pitched battles common in the U.S., and extending stronger protections for the right to strike, such as by replacing the right of employers to permanently replace strikers with a rule like the one in effect in Ontario, which protected jobs for the first six months of a …