Labour Arbitration as Translation: The Transformation of Canadian Labour Arbitration in the Twentieth Century from a Semi-Autonomous Institution of the Shop to an Institution of the State

Abstract

This paper offers a legal pluralist description of the transformation of Canadian labour arbitration over the second half of the twentieth century from an institution of the workplace to an institution of the state. Industrial employment and contractual relations are often described as creating a ‘law of the shop’, or as developing a ‘web of rules’ to govern interactions. These rules are a mix of state law, negotiated norms between employers and employee representatives, amongst workers themselves, and a host of other social and economic forces operating to organize relations at both the industrial and workplace level. Labour arbitrators, appointed and paid for by the parties to interpret collective bargaining agreements, historically expert in the dynamics of the workplace, and concerned with the long term relationships of the parties, have traditionally acted as translators of sorts. Labour arbitration sat at the intersection of the ‘law of the shop’ and the law of the state. Arbitrators acted to translate and mediate between the overarching principles of state law and the terms negotiated by the workplace parties, seeking to use the language and concepts of each so as to protect the system of private contracting from unwanted judicial interference. Towards the end of the 20th century, however, the increasing number of individual statutory rights regime (particularly human rights law) and the expanded scope of arbitral jurisdiction, has served to legalize this previously informal institution, and to effectively pull it into the service of the state’s law.