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Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality

Fudge, Judy (2008) Conceptualizing Collective Bargaining under the Charter: The Enduring Problem of Substantive Equality. Supreme Court of Canada Law Review, 42 . pp. 213-247. ISSN 0228-0108. (The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided) (KAR id:35278)

The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided. (Contact us about this Publication)

Abstract

This paper has three goals. First, it attempts to understand how the Supreme Court conceptualizes the constitutionally protected right to bargain collectively in B.C. Health Services. It concludes that the Court has adopted a purely formal or procedural approach to collective bargaining. Although this conception may promote democratic deliberation by requiring governments to consult with the unions representing government employees who will be adversely affected by legislation that interferes with collective agreements, the paper concludes that it is disconnected from a broader, deeper and more secure normative base upon which to ground labour rights. Second, the paper argues that the Supreme Court’s dismissive treatment of the equality argument in the B.C. Health Services case is not only inconsistent with its decision in Newfoundland (Treasury Board) v. Newfoundland Assn. of Public Employees (NAPE), it both reflects and promotes an idea of equality that is directed at fighting stereotypes to the exclusion of fostering substantive equality. Third, the paper suggests that constitutional litigation in the labour context supports and reinforces partisan politics by promoting a form of aggressive adversarialism that is antithetical to a principled approach to developing labour policy for an economy for which the prevailing form of industrial pluralist labour law no longer fits.

Item Type: Article
Subjects: K Law
Divisions: Faculties > Social Sciences > Kent Law School
Depositing User: D.A. Clark
Date Deposited: 20 Sep 2013 10:58 UTC
Last Modified: 29 May 2019 11:03 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/35278 (The current URI for this page, for reference purposes)
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