The State and Collective Bargaining

Abstract

Dominion Order-in-Council 1003 passed in February of this year promises to be epoch-making in labour relations in Canada. It commands the parties to bargain collectively, assists them to reach agreement, names and enjoins against both employer and workers certain practices opposed to wholesome bargaining relations, and sets up a special Board judicial in character to administer and enforce the Order. Following as it does in the wake of a half-dozen provincial statutes reaching toward the same general purpose, its appearance calls for a review of state policy with respect to collective bargaining in modern industrial society. What are the trends? And with what particular phases of the movement has the State concerned itself across a century and a half? What is to be the future status of collective agreements at law?The attitude and behaviour of the State may conveniently be considered in three phases which are only roughly separable in time. In some countries all three have been experienced while in others progress has been made only to the second. There is considerable difference in opinion in fact whether the change from the second to the third represents the true path of social advance. The first phase is found in the earlier nineteenth-century outlook and practice of State opposition to collective bargaining (a condition which in some countries continued well into the twentieth). The second involves the withdrawal of opposition but where collective bargaining is regarded as outside the State's responsibility. Trade unions and employers' associations are treated as voluntary autonomous associations having important dealings with one another, but collective agreements have no status as contracts; neither in negotiating or enforcing, in assisting or in interpreting does the State lend its authoritative hand. The two collective parties are left to work it out for themselves without benefit of sovereign authority. Third we find the phase of positive State participation, operating as the case may be (1) through compulsion in labour disputes seen in its fullest in Australia; (2) through making collective agreements enforceable at law and thus making the parties responsible for performance, practised for many years in Sweden; (3) through compelling the parties (and particularly the employer) to negotiate with a view to forming agreements, the classic example being the United States since the middle 1930's; and finally (4), in addition to this last, through assuming a responsibility for assisting them to reach agreement and provide adequate machinery for interpretation and enforcement, these being the heavy tasks of government under the Canadian Order.