Documents Mummé, Claire 3 results

"The common law contract of employment is often described as the ‘original' form of modern work regulation, and tales of its origins feature in many historical narratives about the development of modern labour law. But despite its reputed pedigree and normative centrality, the historical development of the common law of employment contracts has not received significant attention. This paper begins to address this gap by investigating the evolution of the common law of employment contracts in the early twentieth century in one common law jurisdiction, the Canadian province of Ontario. Between the 1890s and 1930s the courts of Ontario applied a newly emerging legal paradigm from England, constructed around changing notions of property in employment, employment duration and the tools of managerial control. These ideas served to reorganise the common law of employments by simultaneously placing limits on the content of the exchange in an employment contract, while expanding employers' rights of control so as to permit them to regulate workers' exercise of discretion. Together these developments solidified Ontario's first modern common law paradigm regarding work, ideas that would remain more or less in place until the early 1960s."

"In Commonwealth Bank of Australia v. Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority. Issued two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court crafted a new substantive doctrine of honest contractual performance, based on a newly-recognized central organizing principle of good faith in contract law. A few months later the Court applied the organizing principle of good faith to circumscribe the exercise of an employer's discretion in Potter v. New Brunswick Legal Aid Services Commission. This article offers an assessment of the potential impact of Bhasin and Potter on the future direction of Canadian employment law."

"This article investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers' legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available."