Research Paper Number

4/2017

Title

Leaving Labour Law's Pragmatic and Purposive Fortress Behind: Canadian Union Successor Rights Law as a Case Study

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2017

Keywords

Labor unions--Law and legislation; Labor unions--Recognition; Employee rights; Canada

Abstract

In this article, I analyze a series of Canadian cases on union successor rights defining the circumstances in which labour rights should be transferred to a successor entity in the context of business sales, restructuring and subcontracting. This question poses itself in many legal orders, including US and European Union labour law. In carrying out my analysis, I cast doubt on a globally influential theory of legal interpretation, which I call the “old legality.” According to this theory, labour law is made not through conventional legal reasoning but through non-legal, pragmatic and purposive applications of loose industrial relations standards. I claim that the old legality paradigm is analytically inaccurate and has the perverse effect of normalizing the status quo of the post-war labour law regime in a context where its insufficiency is widely acknowledged. Against the old legality paradigm, I propose a new approach to studying and teaching labour law doctrine, which I apply here to union successor rights law. I argue that the Canadian union successor rights cases I analyze are best understood as a series of interdependent conventionally legal holdings as to what elements should be insufficient for bargaining rights to be transferred to successor business entities. I then demonstrate that the various holdings were justified though policy argument and not through purposive reasoning alone. I demonstrate that each policy argument can be raised in many different cases and reveals deep normative conflict that renders purposive argument inconclusive. Based on my case study of union successor rights law, I thus propose that the old legality paradigm be abandoned in favour of an approach that embraces the incommensurable legal policy conflicts that lie at the heart of labour law. I suggest that this would open up the status quo for normative contestation and help create possibilities for ambitious re-regulation of living conditions in the direction of, say, radical equality, participation and redistribution.