Canadian Labour and Employment Law Journal Revue Canadienne De Droit Du Travail Et De L'emploi VOLUME 12
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Frontmatter_v12n3 11/6/06 1:31 PM Page i Canadian Labour and Employment Law Journal Revue canadienne de droit du travail et de l’emploi 2005 CanLIIDocs 206 VOLUME 12 EDITOR IN CHIEF / RÉDACTEUR EN CHEF Bernard Adell Faculty of Law Queen’s University ASSOCIATE EDITORS / RÉDACTEURS CONSULTATIFS Jeffrey Sack of the Ontario Bar Brian Burkett of the Ontario Bar PLANNING AND SUBMISSIONS EDITOR / DIRECTEUR DES PROJETS Michael Lynk Faculty of Law University of Western Ontario BOOK REVIEW EDITOR / RÉDACTEUR DES COMPTES RENDUS John-Paul Alexandrowicz of the Ontario Bar MANAGING EDITOR / DIRECTEUR ADMINISTRATIF Boris Bohuslawsky of the Ontario Bar Frontmatter_v12n3 11/6/06 1:31 PM Page ii INTERNATIONAL ASSOCIATION OF LABOUR LAW JOURNALS www.labourlawjournals.com Análisis Laboral (Peru) Arbeit und Recht (Germany) Australian Journal of Labour Law (Australia) Bulletin de Droit Comparé du Travail et de la Securité Sociale (France) 2005 CanLIIDocs 206 Bulletin of Comparative Labour Relations (Belgium) Canadian Labour & Employment Law Journal (Canada) Comparative Labor Law & Policy Journal (US) Industrial Law Journal (South Africa) Industrial Law Journal (UK) International Journal of Comparative Labour Law & Industrial Relations (Italy) International Labour Review (ILO) Japan Labor Review (Japan) Labour, Society and Law (Israel) Lavoro e Diritto (Italy) Relaciones Laborales (Spain) Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (Germany) The International Association of Labour Law Journals was established for the following purposes: 1. Advancing research and scholarship in the fields of labour and employ- ment law; 2. Encouraging the exchange of information regarding all aspects of the publishing process; 3. Promoting closer relations among editors of national and international labour and employment law journals. Frontmatter_v12n3 11/6/06 1:31 PM Page iii EDITORIAL ADVISORY BOARD / COMITÉ CONSULTATIF DE RÉDACTION CHAIR Hon. Mr. Justice Warren Winkler Ontario Superior Court of Justice Professor Roy Adams Professor Thomas Kuttner McMaster University University of New Brunswick 2005 CanLIIDocs 206 Professor Marie-France Bich Dean Ronald McCallum Université de Montréal University of Sydney Professor Innis Christie Professor Alan Neal Dalhousie University University of Warwick Professor Geoffrey England Professor Jean Sexton University of Saskatchewan Université Laval Professor Keith Ewing Kenneth Swan King’s College Mediator and Arbitrator London, England Hon. Madam Justice Professor Matthew Finkin Katherine Swinton University of Illinois Ontario Superior Court of Justice Professor Judy Fudge Professor Lord Wedderburn Osgoode Hall Law School London School of Economics Hon. Madam Justice and Political Science Sheila Greckol Professor Paul Weiler Alberta Court of Queen’s Bench Harvard University Dean Patricia Hughes Professor Manfred Weiss University of Calgary J.W. Goethe University PRACTICE ADVISORY PANEL / COMITÉ CONSULTATIF PROFESSIONNEL David Blair Gordon Petrie Vancouver, B.C. Fredericton, New Brunswick David Corry Ronald Pink Calgary, Alberta Halifax, Nova Scotia Donald McDougall Thomas Roper Halifax, Nova Scotia Vancouver, B.C. Gaston Nadeau Suzanne Thibodeau Montreal, Quebec Montreal, Quebec Frontmatter_v12n3 11/6/06 1:31 PM Page iv 2005 CanLIIDocs 206 Foreword 11/6/06 1:32 PM Page 271 Foreword Michael Lynk & John Craig* The third annual Labour Law Lecture and Conference took place at the University of Western Ontario on 14 and 15 October 2005. In keeping with the Conference theme, Administering Labour Law, scholarly papers and commentaries were presented on issues 2005 CanLIIDocs 206 surrounding the administration and reform of Canada’s labour law system. This is the second of two special issues of the Canadian Labour and Employment Law Journal in which the papers presented at the Conference are being published. The purpose of the 2005 Labour Law Lecture and Conference was to debate the future direction of Canada’s labour law system in light of trends and pressures that have emerged in recent times not only within Canada, but also in the international sphere. One of the notable strengths of Canada’s labour relations community has been the willingness of its members to participate in scholarly discussions about the future of the industrial relations system. Labour law is one of the most academic fields of legal practice because of its deep roots in socio-economic policy, its direct links with human rights and con- stitutional law, and the constant influx of new ideas and scholarship from influential and respected academics and practitioners. The Journal itself is a reflection of this phenomenon. The Conference organizers were fortunate indeed to attract the participation of so many prominent members of the labour relations community. Diverse issues were discussed, including the impact of globalization on the labour market, the importance of human rights principles in achieving industrial justice, the modernization of labour * Michael Lynk is an associate professor of law at the University of Western Ontario, where he teaches labour and constitutional law. John Craig is a partner in the Toronto office of Heenan Blaikie LLP, and an adjunct professor of law at the University of Western Ontario. They are the co-editors of Globalization and the Future of Labour Law (Cambridge: Cambridge University Press, 2006), and the organizers of the labour law conference held each October at the University. Professor Lynk and Dr. Craig are the guest editors of this edition of the Canadian Labour and Employment Law Journal. Foreword 11/6/06 1:32 PM Page 272 272 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.] law administration, the value of tripartism, and the substance of labour law itself. The views and ideas that were shared will no doubt contribute to the shaping of Canadian labour law in the coming years. In this issue, we offer eight papers by Conference participants. These papers can be grouped into three broad categories. First, there are three commentaries by distinguished members of the academic and labour relations communities, each of which looks to the past to predict the future role of labour law in Canada. David Mullan begins with the paper he presented as the 2005 Koskie Minsky University Lecturer in Labour Law. Dr. Mullan, one of 2005 CanLIIDocs 206 Canada’s foremost authorities on administrative law and Professor Emeritus at the Queen’s University Faculty of Law, explores the his- torically dominant position of labour law in the context of Canadian administrative law. He observes that today’s principles of judicial intervention in administrative processes are largely the product of judicial review decisions in the labour law field. Professor Mullan asks whether labour law has been the “tail” that “wags the dog” of administrative law, but he ultimately opines that administrative law has benefited, and can continue to benefit in the future, from princi- ples developed in the labour law field. Professor Mullan’s paper is followed by a commentary by Beth Bilson, professor of law at the University of Saskatchewan and for- mer Chair of the Saskatchewan Labour Relations Board. In her paper, she focuses on the concept of workers as “industrial citizens,” argu- ing that the attainment of democracy in the workplace remains an unresolved issue in the Wagner Act model of collective bargaining adopted by Canada. In a liberal-democratic society, Bilson writes, employee self-determination ought to be a governing value, and she suggests that the failure to fully achieve that goal might be remedied through labour law reforms such as permitting more broadly based bargaining units, expanding the range of topics dealt with in collec- tive bargaining, and giving unions non-majority employee represen- tation rights. Brian Burkett, a senior labour lawyer with Heenan Blaikie LLP and counsel to the Canadian Employers Council, provides a third commentary. Mr. Burkett posits that tripartism must be treated as a fundamental principle in Canadian labour relations, and that labour law reform must proceed on the basis of tripartite consultation as Foreword 11/6/06 1:32 PM Page 273 FOREWORD 273 opposed to one-sided decision-making by governments, based on political opportunism. Drawing on Canada’s experience as a member of international tripartite bodies such as the International Labour Organization and the Inter-American Conference of Ministers of Labour, and taking into account historical domestic reform processes at the federal and provincial levels, Mr. Burkett concludes that the interests of both employers and workers are best served by a long- term commitment to the tripartite model. The second set of papers addresses the role of empirical research and statistical analysis in understanding and reforming 2005 CanLIIDocs 206 labour law. Sara Slinn, of the Faculty of Law, Queen’s University, argues in her paper that empirical social science research can be an effective tool in checking the assumptions, inferences and untested beliefs on which traditional legal reasoning is based. In her view, there is often a discrepancy between labour law in theory, and its practical application and impact in the workplace. Understanding this discrepancy is an essential first step in formulating, applying and evaluating labour law. On this basis, Professor Slinn calls on labour law and industrial relations scholars to engage in social science research and to adopt a multidisciplinary approach in their work. Chris Riddell’s paper, which follows and