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Labour Against the Law? Contesting the Restrictive Norms of Industrial Legality through Unlawful Strikes
Full text linkNorth American regimes of industrial legality provide workers with protected rights to organize, bargain collectively and strike. However, they also limit the freedom to strike. Trade unions commonly accept and enforce these limits, but at great cost to solidarity and militancy. This article examines the many ways law works against labour by restricting the freedom to strike and explores the practice of unlawful strikes in North America, including recent examples that resulted in successful outcomes. It concludes with reflections on the revival of unlawful strikes as a tactic for rebuilding and remobilizing the North American labour movement. While the article’s focus is North America, the discussion of unlawful strikes may also be relevant in other countries that limit the freedom to strike
Corporate Governance: Law, Regulation and Theory, Second Edition
No full textThis thoroughly updated second edition of an acclaimed textbook provides the definitive academic account of corporate governance as a subject of legal inquiry. Marc Moore and Martin Petrin analyse the legal and regulatory framework of corporate governance, with references to the latest practical developments in this area. They also encourage readers to develop their own critical opinions on the topic by referencing leading strands of theoretical and inter-disciplinary literature.https://digitalcommons.osgoode.yorku.ca/faculty_books/1448/thumbnail.jp
Bring Your Own Device — Now Hand It Over! Rescuing Workers’ Privacy During Data Searches
No full textTechnological advancements pose serious threats to workers’ privacy. This article focuses on practices that greatly blur the line between workers’ private life and life at work, such as the practices of “bring your own device,” and linking cloud storage to personal and work devices. The first sees workers allowed to use personal devices for work-related activities, potentially for several employers. The second sees workers using online storage for personal and professional reasons, linking this storage to personal and work devices. Such practices can be useful for workers. However, they also present challenges for workers’ privacy, particularly when other legal frameworks are implicated. Employers may have legitimate reasons and a legal basis to request access to, control, and search of workers’ devices on the basis of, inter alia, data protection, freedom of information, and civil procedural rules. These rules may promote other legitimate goals. However, when individuals do not separate their private and professional activities cleanly within or across devices in a way that can be searched, the legal regimes in question can pose threats to privacy. These regimes may require analysis of unseparated material through accessing data and devices. This article examines this trend with a primary focus on United Kingdom and European law. We propose that workers’ right to private life should be understood as a right to supported separation of work and private contexts and a right to control the process of a search of data and devices
Lost in Translation: Is Data Protection Labour Law Protection?
No full textThis article critically examines how the European General Data Protection Regulation (GDPR) defines and applies the legal categories of “data subject” and “data controller” within employment relationships. Under the GDPR, employers who collect and process personal data are classified as data controllers, while employees are designated as data subjects. However, this article argues that such a “translation” of data protection categories, rights, and obligations into the regulation of workplace dynamics requires closer examination. The focus is on evaluating whether the GDPR’s rights and obligations for data subjects and data controllers accurately capture the agency and interests of employee and employer roles in the workplace. Through an analysis of data subject rights (GDPR, Articles 12–22) and selected data controller obligations (GDPR, Articles 24, 25, and 35), this article identifies a “Lost in Translation” effect, where the GDPR’s assumptions of autonomy and agency conflict with the hierarchical nature of employment relationships and with the information asymmetries between employers and data processors (GDPR, Article 28). Ultimately, this analysis highlights the need to reconsider and adapt these legal categories to better reflect the unique characteristics of employment in the regulation of data processing
Liability, Property, and Inalienability Rules in Employee Data Regulation
No full textLegal protections for workers’ data have usually taken the form of privacy protections designed to deter data processing that is excessive or invasive. Such protections generally fall into the category of liability rules, under which rights can be infringed as long as compensation is provided for the violation. As Guido Calabresi and A. Douglas Melamed have described in “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” liability rules are contrasted with either property rules that prevent the involuntary transfer of rights or inalienability rules that prohibit rights transfers altogether. This article explores how property rules and inalienability rules could provide better protections for employee data rights in certain contexts. Property rules would allow employees to maintain control over their data, requiring employers to negotiate for its use rather than unilaterally collecting and processing it. Inalienability rules could shield particularly sensitive categories of worker data — such as biometric information or private communications — by imposing strict limitations and severe penalties on their collection and use. By rethinking the rules governing employee data, this article advocates for a more equitable approach of mixed regulatory approaches, alternatively providing workers with compensation, greater economic power, or legal barriers to any potential processing
Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec: The Supreme Court of Canada Gambles on Liberal Voluntarism to Provide Meaningful Access to Collective Bargaining
No full textIn April 2024, the Supreme Court of Canada (SCC) unanimously ruled that the exclusion of managerial employees from Quebec’s main statutory collective bargaining regime, combined with a failure to provide them with access to any other statutory labour rights, did not violate their constitutionally protected freedom of association. This decision raises many questions about the future of constitutional labour rights at the Supreme Court. In this brief comment I address what is arguably the biggest takeaway for workers such as the casino managers whose freedom of association is poorly or entirely unprotected by statutory rights: that despite the majority judgment’s conclusion that the same test is to be used to adjudicate Charter claims based on underinclusion as is used for claims of direct state interference, excluded workers will have to take their chances with a set of untested and unpromising legal claims within a regime of liberal voluntarism, as the Court now finds this regime compliant with Charter-protected freedom of association
Equal Justice Under Law: Civil Recourse Theory, Access to Justice and the Rule of Law in Canada
No full textJudicial Climate Governance: Corporate Purpose and the Courts
No full textWith the existential threat of climate change, there is increased attention about the corporation\u27s duty to maintain a healthy environment, particularly in light of the conventional shareholder primacy model of corporate purpose. This article proposes the idea of judicial climate governance. In the absence of robust legislative reforms that would obligate corporations to mitigate and even eliminate their inordinate climate impacts, in climate change litigation courts can and should render liability and compensation decisions that direct corporations towards a more stakeholder-friendly model of corporate purpose. To substantiate the need for judicial climate governance, this article canvasses and contextualizes the historical corporate purpose debate in some common law jurisdictions. It also compares private law litigation that can result in significant compensatory awards for corporate wrongdoing with regulatory fines and penalties that merely constitute the cost of doing business. Ultimately, it contends that-without contravening the separation of powers-courts can effectively promulgate corporate climate policies that account for stakeholder impacts. And, in doing so, they would be falling in line with historical precedents that recognized corporate liability for stakeholder harms, namely to overseas colonial subjects and former employees
