Friday, October 17, 2008
David Doorey (York Univ.) has posted on SSRN his new article: Union Access to Workers During Union Organizing Campaigns: A New Look Through the Lens of Health Services.
Here is the abstract:
The Supreme Court of Canada ruled in the recent Health Services decision that the Canadian Constitutional protection of 'freedom of association' should be interpreted to provide at least as much protection of associational rights as provided by international conventions that Canada has ratified (the "Equivalency Requirement"). However, the Court then made the Equivalency Requirement conditional upon a second requirement when it ruled that only government interference that amounts to a "substantial impairment" of freedom of association is protected (the "Substantial Impairment Requirement"). Therefore, Canadian laws that provide less protection for freedom of association than ratified international conventions will be Constitutionally valid provided they do not 'substantially interfere' with freedom of association.
This paper explores this peculiar result using the issue of union access to employer property for the purpose of organizing. In doing so, the article compares the approaches to union access to employer property under Canadian, American, and British law, as well as the approach of the ILO's supervisory bodies interpreting ILO Convention 87, which Canada has ratified.
I was on a panel with David in Montreal at the Law & Society Associational Annual Meeting last May when he presented this paper, and it is filled with interesting nooks and crannies (I guess that makes it like an English Muffin). In any event, the comparison to American law in this area is quite fascinating and the Canadian approach provides an illustration of the advantages and pitfalls in limiting union access to workplace for organizational purposes.