Lecture 1: Locating Law in Society

official version of the law: what the legal world would have us believe about itself – is that it is an
impartial, neutral and objective system for resolving social conflict. not always neutral; unbiased

 -individuals can create change

 -views that shape the law of work influence key policy debates within the political organization
that produces the legal regulation of work

 -impartially: in a way that treats all rivals or opponents equally

 -neutrality: not taking sides or supporting and just staying in between or the middle
 -objectively: inconsidering, not being influenced by personal feeling

Main perspectives that shape the law of work:

 -The Neoclassical:
 ->labour markets are competitive.
 demand for baristas=the supply of baristas when $10 is offered and no worker can ask for more
because the employer can find all workers it needs because everyone wants a job
 Replacing workers with machines making unemployment higher
 judges should enforce contracts and not approve legislation to protect property rights

-The managerialist:

 ->workers who are treated well will be more committed to getting the employer’s goal
 ->employment laws should be at a minimum
 ->unions and collective trade, unnecessary limitation to managerial privilege and flexibility
 ->a recognition of unions but right of employers to resist employees’ attempts at unionization

and a system that permits employees to easily remove a union

 -The industrial pluralist perspective:

 ->unfair power between employer and employee, workers lack "voice" and creates unequal
societies
 ->law should promote collective bargaining
 ->challenge managerialists ability to balance interests of employees & employers
 ->challenge bias by arguing how their images isn’t realistic to the real world for work,
employers, the wealthy, and create fast financial inequality in society
 ->the goal of law in relation to work should be to strike a balance between planning concerns of
employers and quality concerns of workers, - labour standards that promote basic and fair
working conditions.

 -The critical Reformist perspective:

 ->focuses more on outcome of negotiation
 ->even though its gender neutral, it has been done by men to benefit men
 ->unsafe and risky jobs are still filled with women, people of colour, disabled, young workers
 ->common law model requires workers to negotiate or fight for improvement but its difficult
when they lack "voice"
 ->administration want workers who lack knowledge of agreement to enforce and not ones who
want to negotiate

 -The Radical perspective:

 ->Karl Max theories: most workers in an investor society lack property needed to create value
through their labour power, so they must sell labour power to those who own property in order
to survive
 employers’ job to take remove labour at minimum cost
 workers have personal needs and not productive needs which make conflict interests
 ->goal is to either improve finance model or replace with another model in which power is more
equally distributed throughout society
 ->supports negotiation and financial standards
lecture 2: Regulating Employment Law in Canada
 -Rights in the workplace: Provincial (Ontario):
 ->Ontario Human Rights Code: equal treatment with respect to employment and loyalists (&
goods and services)
 ->Employment standards Act: minimum standards = pay, hours of work, vacation, pregnancy
and parental leave, dismissal, layoff and severance
 ->Occupational Health and Safety Act
 ->Labour Relations Act: Unionized workplace: ensures the right to organize and Negotiations
 ->Pay Equity Act: ensures equal pay for equal work in workplaces within 10> employees
 ->Workplace Safety Insurance Act: Insurance plan to protect injured workers
 ->Accessibility for Ontarians with Disabilities Act: ensures access to goods, services, settlement
and employment

 -Federal:
 ->Canadian Human Rights Act: federal organizations/industries. -post office, airlines, tv, radio,
mining operations
 ->Canada Labour Code:

1) industrial relations: employment relations that studies employment relations between employers
and employees, labour/trade unions, employer organizations

2) Occupational Health & Safety: Exhaustive field concerned with safety health, and welfare of people at
work

 Employment Equity Act: requires federal in control employers to engage in bold employment
practices to increase the representation of four designated groups: women, people with
disabilities, Aboriginal peoples, and visible minorities

 -Code Grounds are race, colour, ethnic origin, sex, gender, age disability etc.

 -Trades Union Act (1872): Canada's first labour law, which gave workers the legal right to
associate in trade unions.
 negotiate better pay, better working conditions, provide training and give support. 8h labour, 8h
recreation, 8h rest
 -Industrial Disputes Investigation Act, 1907
 ->forbids any strike or lockout until the matters in dispute have been dealt with by a Board of
Conciliation and Investigation, normally applies to disputes in mines, agencies of transport and
communication and certain public utilities. 30-day break period
 -Factory acts 1884 (Ontario):
 ->This Act was important in that it suggested prohibitions on the work activities of children and
women and suggested work hour restrictions for all employees. was very vague and couldn’t be
forced.

 -Minimum wage act 1920:

 ->

 -1919 Winnipeg strike: They wanted the right to negotiate, better wages and better working
conditions. 30,000 workers went on strike
 criminal code 98: Criminal Code of Canada was a law enacted after the Winnipeg general strike
of 1919 banning "unlawful associations"
 ->It was used in the 1930s against the Communist Party of Canada.
 section 41 immigration act: federal government must: make sure that official language
minorities are thriving, support them in their development, and promote the use of both official
languages all across the country

 -Rand Formula (1945) Ford strike, Windsor

 ->11,000 employees went on strike for Ford Motor Company Plant. they demanded recognition
of their union by Ford and membership for plant workers.

 -Setting Minimum standards 1960-now:

 Liberal voluntarism: minimal state order of employment relations

 labour standards = poverty, wages, improving working conditions and employment

opportunities

 -Ontario Employment Standards Act (1968):

 addressed working conditions such as hours of work, vacations, and minimum wages, bringing
employment standards rules together in one act. i.e. 8h/day, 40h/week. general minimum wage
for both men & women $1

 -2017 changing workplaces: bill 148 act: changing workforce nature and economy
 -fight for $15 minimum wage and fairness, 3 weeks vacation, paid sick days, rules that apply to
and respect everyone, take bullying/harassment seriously
Lecture 3: Hiring: Bona Fide Occupational Requirements (BFOR) and
the Meiorin Case
 -Ontario human rights code: special programs part 1: designed to relieve hardship or profitable
disadvantages or assist disadvantaged people or groups to try and achieve equal opportunity for
everyone.
 ->Ontario human rights commission:

1)protecting equal opportunity programs from people who don’t experience disadvantages

2) promoting actual equality to address disadvantages and discrimination in all forms

 -Formal equality: everyone receives similar or same treatment, gender should not be relevant,
ignores historical disadvantages

 -Historical disadvantage: unfavourable circumstance or condition that reduces chances of

success or effectiveness.

 -Royal Commission on the status of women:

 ->training programs made more open to women, gender & marital status prohibited as
discrimination by employers, educational opportunities for women, pensions, federal
government name more women judges to all courts within its control/power, daycare,
guaranteed 18 weeks of unemployment benefit for maternity leave

 -Substantive Equality:
 ->Recognition of inequality fixed in political, social and economic divisions between men &
women, and address inequality.

1) breaking the cycle, 2) promoting respect, 3) positive identity, 4) full participation

 -Equality means?
 ->Must comply with OHRC, educate & train employees on policies and procedures
 ->making sure the job requirements are reasonable and fair
 ->following the OHRC when making application forms, with interviews and questions; family
status, marital status, sex, & pregnancy

 -BFOR: a rule or requirement that is essential to a job and cannot be avoided; discrimination
justifiable in specific work environments:
 ->employer adopted the standard honestly and believed that it was necessary to the fulfillment
to the work-related purpose & is legitimate
 ->that the standard is necessary to the accomplishment of the work-related purpose. to show it
is necessary, it must be demonstrated that it is impossible to take in individual employees
sharing characteristics of the applicant without striking excessive burden upon the employer.

 -Meiorin Case: Female Firefighters: sex discrimination

 ->dismissed from her job for failing a fitness test, she took 49 seconds longer in her 2.5k run
 her case got dismissed twice, they thought it wasn’t discriminatory, so she took it to supreme
court
 the B.C government say they are necessary, and less people have been injured since those tests
became mandatory to pass and removing them for women would increase risks. but Meiorin
fans things the test isn’t fair because women have naturally lower aerobic capacity then men.
Lecture 4: Hiring: Ontario Human Rights Code (OHRC) and Special
Programs
 ->Canada and Anti-Racism: general opinions that Canada in raceless; tolerating practices that
have intent of discriminating others
 ->Process that separates & challenges racism through direct action at personal levels. eg.
fighting racist hate groups, avoid them, protest

 -Polite Racism: Disguising a dislike through behaviour that isn’t outwardly harmful or damaging
in appearance

 -Forms of Discrimination in hiring.

 ->institutional racism: Organized rules, procedures, rewards or practices that have intent
(systematic) or effort (systemic) of excluding/denying and empowering others.

1) Systematic: discriminatory actions like jokes or manipulating rules that deny minority access or
participation

2) Systemic: policies or practices that are part of the structures of an organization and create
disadvantage for racialized individuals.

3) Everyday Racism: racist acts that are present in everyday life and becomes accepted as the normal by
the dominant

4) Cultural Racism: discriminates based on cultural differences between ethnic or racial groups

5) age: to be over 18

6) disability: physical & mental damage including drugs/alcohol dependence

7) family status: parent/ child relationship i.e. don’t want to rent a place because they don’t want
children so they say adults only

8) Religion: Treating workers unfavourably or unfairly because of a belief that have

 -Ontario Human Rights Codes:

 ->Section 23(1): prohibits employers from publishing or displaying employment ads that directly
or indirectly indicate qualifications based on a prohibited ground of discrimination
 ->Section 23(2) prohibits using an employment application form or asking the applicant written
or oral questions that directly or indirectly classifies them based on a prohibited ground of
discrimination.
 ->Section 24(3): an employer might be able to ask about Canadian experience in a job interview
or state that Canadian experience is preferred, but only if they can show that work experience in
Canada is a legitimate requirement, and that providing accommodation would cause undue
hardship.
 ->Section 23(4): prevents an employer from using an employment agency to hire people based
on preferences related to Code grounds. Prohibits an employer from using an employment
agency to recruit, select, screen or hire people based on whether they have Canadian work
experience. employers should assess all prior work experience, regardless of where it was
obtained

 -Prima facie discrimination: Prima facie case means that it needs serious consideration,
investigation or determination.
Lecture 5: Hiring, Seniority and the Collective Agreement:
 seniority: the length of time that an individual has served in a job or worked in an organization.
It can bring higher status, rank, pensions, more likely for promotion & benefits or outweighs to
an employee who has served in an organization for a longer period. Gives workers job security
which is beyond wages or anything else in the 1930’s. It protected their jobs. hiring was done in
favouritism. No guarantee to have that job the next week so seniority was very important

 -Seniority: Historical Proof: Favoritism, bias, unpredictable firing, job security, strengthens
unions----->=Foundation of union movement

 -How is Seniority used?

 ->Benefit status: to determine a worker’s status with respect to occurred benefits (comparing
one worker to another, and how benefits were given)
 ->Competitive Status: to determine a worker’s status relative to other workers
 ->Super-Seniority: for specified union positions (given to workers who hold union positions
meaning wouldn’t be laid off, even if he was hired last. (Protection from layoff)
 ->Hiring: Limiting and restricting new hires
 Bumping: Senior workers may bump or displace junior workers

 -Is the Seniority Principle Discriminatory?

 ->discriminatory effect on women and minorities in the labour force. they are the last hired and
first to be fired.
 people with disabilities: employers and unions not required to override seniority to
accommodate
 youth: low voluntary quit rate, multiple job ladders

BFOR one time a employer can discriminate against you

Seniority limited discrimination , cannot be undermined, cannot be lost for just any rrason. Gives
employee value. it trumps BFOR