Unit 1 - Lesson Objectives Flashcards
What are the three work law regimes?
Common Law Regime
Regulatory Regime
Collective Bargaining Regime
What are the two types of common law relevant to work law?
- The Law of Contracts
2. Law of Torts
What is the difference between employment and self-employment
Employee - A worker who is in position of subordination to an employer and subject to rules and entitlements set out in a n employment contact
Self employment - the state of working for oneself as a freelance or the owner of a business rather than for an employer.
What are the tests the law applies to determine if someone is an employee and an independent contractor?
Control Test - The essential criterion of employer-employee relations is the right to give orders and instructions to the employee regarding the manner in which to carry out their work
Fourfold Test - control test gave way to fourfold test. Control itself in itself is not always conclusive. Involves looking at control, ownership of tools, chance of profit, and risk of law
Organization Test - asks whether the work is question is “an integral part of the business”
Why might someone violate work law?
The workers are socially vulnerable, making them less likely to resist. Employers make economic calculations that might lead to illegal behaviour. Ignorance of the law is also a factor.
How do internal and external feedback loops affect the practice of work law? (Internal feedback loop)
Shows how the outputs of each regime feeds back into the other regimes.
i. e. Regulatory standards, like min wage, regulate both individual employer contracts in the common law regime as well as collective agreements in the collective bargaining regime
i. e. Legal rules produced by the common law regime affect outputs of the other two regimes. Almost every regulatory standard and every collective bargaining law represents the government’s response to a perceived inadequate (i.e. notice of termination)
i. e. Legal rules produced by the collective bargaining regime in the form of collective bargaining laws and collective agreement provisions influence outputs form the other regimes (i.e nine-hour movement)
How do internal and external feedback loops affect the practice of work law? (External feedback loop)
Economic and Market System -Labour and other market forces at local, regional, and global levels
Broader Legal Subsystem - Legal rules governing tax, trade competition, immigration, business associations, welfare, property, and constitutional law
Political System - Party politics, political values, and political systems
Social, cultural, and Religious Subsystem - Social and cultural norms, religion, family, language, social group dynamics, and identity politics (class, race, gender, ect.)
Ecological/Environmental Subsystem - Climate, access to natural resources, geography
What are the main perspectives that shape the law of work?
- Neoclassical perspective
- Managerial perspective
- Industrial Pluralist perspective
- Critical Reformist perspective
- Radical perspective
What is the master and servant law?
A body legislation and related case law first enacted in the 14th century in the wake of the Black Death. This law determined the rights and obligations of worker and employers based on social status.
Why is master and servant law important to work law today
Master and servant law is a law that determined the rights and obligations workers and employers based on their social status.
What are the origins of Canadian common law of employment contracts?
Labour lawyers and historians have traditionally believed that the common law of employment entered in the 19th century England just as modern principles of contract were developing. Common law is said to have displaced master and servant law. In Canada starting in 19th century Ontario entered it second industrial revolution. The changes in economic activity over the early 20th century provoked the growth of professional class workers and these worker brought their employment claims to common law courts with a new degree.
Fudge and Tucker divide employment law history into two eras. What are the eras?
Industrial Voluntarism
Industrial Pluralism
What distinguishes Industrial Voluntarism from Industrial Pluralism?
During the era of industrial voluntarism, that a market-based conception of justice dominated and that the state performed a dual role of coercion and conciliation, with an aim to “support the development of responsible trade unionism … and impede more radical manifestations of working-class solidarity”
What distinguishes Industrial Pluralism from Industrial Voluntarism?
It gave way at the end of the war to the second era, industrial pluralism, due to rising worker militancy and economic power. The new system built during the early part of this era—often called “Wagnerism” due to the influence of the 1935 US labour relations act, the Wagner Act—reconstructed industrial relations, but did not fundamentally alter the Canadian state’s approach to labour.
Why do Tucker and Fudge suggest that employment law in Canada exemplifies “fragmentation” rather than “pluralism”?
This theme was selected because it allows us explicitly to take issue with industrial pluralism, the predominant approach to post-war Canadian employment relations. According to it, after World War II, collective bargaining legislation administered by independent labour boards combined with a system of grievance arbitration to enforce collective agreements, to create a fundamentally different regime in which workers enjoyed the benefits of industrial citizenship. By contrast, we argue that collective bargaining expanded selectively and that most workers relied on individual contracts and minimum standards for the determination of their working conditions. Moreover, it was not simply the case that there was a plurality of institutions for the determination of conditions, but that the contours of labour market fragmentation significantly affected workers’ access to the regime’s various components.
