Labour Law in Canada as a Site of Legal Pluralism

Abstract

The law that applies to paid work includes a plurality of rules, including a plurality of stated-based laws (i.e. labour law statutes, civil law, human rights protections) and rules emanating from social actors in the workplace (rules found in collective agreements, individual contracts of employment, corporate policies, workplaces practices and customs). The specificity of labour law is derived in large part from the ways in which these diverse sources of law co-exist and interact. At the same time, labour law has historically affirmed legal pluralism, according special legitimacy to rules created by workers and employers through the processes of collective negotiation. From a human rights perspective, labour law can be understood as part of a global movement towards the affirmation of economic and social rights of workers. As such, it endeavours to secure rights that are collective and diverge from the traditional individual rights of liberal legalism. In this chapter, these themes are explored by examining two areas where adjudicators have confronted the intersection of the plurality of sources that constitute labour law. The first area reviews the approach of labour arbitrators regarding the interface of state-based human rights guarantees and the resolution of grievances in the workplace; the second concerns judicial assessments of the interface of state-based laws and collective agreements, focusing on cases implicating protections for the rights of vulnerable workers.