Tuesday, November 29, 2011
Doorey on Doorey on Decentred Regulation and Fast-Track Collective Bargaining to Improve Employment Standards Compliance
David Doorey (York - Canada) has just posted on SSRN his new article forthcoming in the Osgoode Hall Law Journal: Good Employer, Bad Employer: Decentred Regulation and Fast-Track Collective Bargaining to Improve Employment Standards Compliance.
Here is the abstract:
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether "decentred" regulatory theory offers useful insights into the challenge of improving workplace law effectiveness. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist'. Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees.
The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a “dual regulatory stream” model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
The North American workplace law model is indeed broken, and this paper provides additional methods and insights from the new governance model to help repair our broken system. Count me still skeptical of self-regulatory approaches in the workplace, but Doorey's paper looks to be a must-read for anyone considering alternatives to workplace reform in Canada and the United States.