Unit 1 Flashcards
What are the three work law regimes?
Common Law:
Regulatory Regime:
Collective Bargaining:
What are the two types of common law relevant to work law?
Employment: contracts between employer and employee
Law of torts: e.g. restricting use of property, trespassing
What is the difference between employment and self-employment, and what are the tests the law applies to determine each?
Often determining if a worker is an employee or a contractor can be complicated.
A worker is in a subordinate position to an employer and subject to the rules of the contract, whereas, an independent contractor is a worker in business for himself. The main distinction is autonomy and control.
The distinction is important because they are treated differently by the law. It’s also important to determine liability when there is a problem.
Why is the employment contract characterized by a power imbalance? How does this affect the law of work?
There seems to be an inherent imbalance in employment contracts. For example, the employer can arbitrarily fix terms of the contract. The courts have agreed that employers do not exercise their authority in a responsible manner.
Neoclassical
They would opposed mimimum wage Standards because it raises costs and Distorts markets. e.g raising wages Of waiter would lead to less hiring.
They see unions as a cartel, that controls Labour supply. Benefits for unionized Workers come at the expense of non-unionizedWorkers, consumers, shareholders etc…
Managerialist
From their point of view, “higher” standards are better for business. However, minimum standards should be pursued, but at a low level to deal with bad employers only. They would probably support important increases in minimum wage standards.
Unions harm managerial flexibility but unlike neoclassical, they do accept unions have a role
Industrial Pluralist
They would support minimum wage standards
They would promote unionization because they think it’s the best way to find balance.
Critical Reformist
Collective bargaining fights inequality, but it fails most workers. Regulation is key
Radical
Regulation is marginally effective. Workers are still exploited
Unions are useful for raising class consciousness, but they have limitations because they are often conservative
What do Fudge and Tucker identify as the core theme that runs through the history of collective bargaining law in Canada?
Collective bargaining is uneven throughout Canada. It was more tolerated in male-dominated areas and critical economic sectors. However, the vast majority of workers, even at the peak of unionism, relied on individual contracts and minimum standard regulations.
Common law
system of judge-made rules that uses a precedent-based approach. Earlier decisions dealing with similar or legal issues guide later decisions in an attempt to create legal predictability. However, common law rules evolve with social norms.
Dependent contractor
worker whose status falls in between that of an employee and an independent contractor. This worker has more autonomy and independence than a typical employee, yet remains economically dependent on one customer for income and is subject to considerable control at the hands of that customer.
Implied contract term
default contract term invented by common law judges and read into an employment contract when the written terms of the contract do no adddress the specific issue addressed by the implied term.
Precarious work
work that is defined by characteristics such as job insecurity; short job tenure; low pay few benefits; low collective; collective bargaining coverage; and sporadic, limited, or unpredictable work hours.
Standard employment relationship
mode of employment characterized by stable, long-term job security, full-time hours, decent benefits, and wage rates that rise steadily over time.
