Historical Development of AngloCanadian Labour Law

1
Historical Development of Anglo-Canadian Labour
Law

• 1. Feudalism to Master and Servant Regime,
  1000-1562
• 2. Master and Servant Regime to Liberal
  Voluntarism, 1562-1870
• 3. Liberal Voluntarism to Industrial Pluralism,
  1870-1970

2
Feudal Relations

• 1. Status Relation Unfree labour no labour
  market to speak of
• 2. Hierarchical Between Superior and
  Subordinate
• 3 Legitimated
• Functionally
• Ideologically

3
Crisis and Transformation

• Rise of Class of Lordless and Propertyless
  Workers
• Black Death 1348 killed up to half of English
  population
• Responses Legal Foundation of Master and
  Servant Regime
• Royal Proclamation of Labourers, 1349
• Statute of Labourers, 1351
• Statute of Artificiers (Apprentices), 1562

4
Master and Servant Regime

• Compulsory labour for idle
• Presumption of yearly hiring no termination
  without permission
• Restricted labour mobility - testimonials
• Hours of work established by law
• Wages fixed by magistrates
• Apprenticeships
• Criminal Sanctions for Employee in Breach
• Wage Recovery

5
Master and Servantin Transition - Early
Nineteenth Century

• Disappearance of Wage Fixing
• Presumption of Yearly Hiring Defeated
• Worker Breach Punishable as Criminal Offence
  Increased Use of Penal Sanction and Greater
  Harshness
• Employment as Domestic Relation Hierarchical
• Quasi-Property in Servant
• Wage Recovery

6
Blackstone (on why an employer could sue a third
party for injury to an employee) The reason
and foundation upon which all this doctrine is
built, seems to be the property that every man
has in the service of his domestics acquired by
the contract of hiring, and purchased by giving
them wages. (1765)
7
Worker Combinations under Master-Servant Regime

• Initially treated as criminal conspiracy to
  violate statutory wage fixing apart from means
• By 19th century, rationale shifted to restraint
  of trade
• Combination Acts 1799, 1800
• Also, strong legal controls on means used to
  advance combinations goals

8
Master Servant Law in Canada

• Unfree labour (slavery, serfdom) marginal
• Master and Servant regime received with English
  law
• But lots of confusion about what the law was
• Upper Canada 1847 M S statute
• Criminal breach
• Wage recovery
• No wage fixing
• Law on Combinations unclear

9
Rise of Liberal Voluntarism in Canada
Combinations Criminal Law

• Trade Union Act, 1872 immunity from being
  prosecuted for criminal conspiracy for act of
  combining to improve conditions
• Criminal Law Amendment Act, 1872 criminalized
  means used to advance goals of combination eg.
  watching and besetting
• Criminal Law Amendments, 1876 peaceful
  picketing exempted
• Criminal Code, 1892 exemption omitted

10
Rise of Liberal Voluntarism in Canada
Combinations Civil Law

• Still unlawful conspiracies in restraint of trade
• Collective agreements legally unenforcible
• Agreements between trade union members
  unenforcible
• Union not a separate entity apart from its
  members cant sue or be sued in its own name

11
Rise of Liberal Voluntarism in Canada Master
and Servant Law

• Criminal breach of contract of employment limited
  to circumstances endangering public, 1877
• Provincial Master and Servant Acts continued
• Include wage recovery
• Some also included penal provisions for employee
  breach of contract

12
Liberal Voluntarism to Industrial Pluralism

• Supplementing the Common Law/Criminal Law
  Regulation of Employment with
• Minimum Standards
• Collective Bargaining

13
Minimum Standards

• Factory legislation and workers compensation
• Employment standards
• Hours of work
• Minimum wages etc.
• Fairness
• Human Rights Codes
• Pay and Employment Equity

14
Collective Bargaining

• Trade Dispute Legislation 1870s-1890s
• Industrial Disputes Investigation Act, 1907
• Snider decision, 1925
• Industrial Standards Acts - 1930s
• Freedom of Trade Union Association Acts 1930s
• PC 1003, 1944 Statutory Collective Bargaining

15
Criminal Code
425. Every one who, being an employer or the
agent of an employer, wrongfully and without
lawful authority (a) refuses to employ or
dismisses from his employment any person for the
reason only that the person is a member of a
lawful trade union or of a lawful association or
combination of workmen or employees formed for
the purpose of advancing, in a lawful manner,
their interests and organized for their
protection in the regulation of wages and
conditions of work, (b) seeks by intimidation,
threat of loss of position or employment, or by
causing actual loss of position or employment, or
by threatening or imposing any pecuniary penalty,
to compel workmen or employees to abstain from
belonging to any trade union, association or
combination to which they have a lawful right to
belong, or (c) conspires, combines, agrees or
arranges with any other employer or his agent to
do anything mentioned in paragraph (a) or (b), is
guilty of an offence punishable on summary
conviction.