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20 Canadian Lab. & Emp. L.J. 141 (2017)
Protecting Concerted Action outside the Union Context

handle is hein.journals/canlemj20 and id is 147 raw text is: 

             Protecting Concerted Action

               Outside the Union Context

                  Brishen Rogers*   & Simon  Archer**

      Canada's  labour laws do not adequately protect non-union forms of
concerted action - a problematic gap in the legislation, given the increase in
alternative models of collective organizing. This article proposes the adoption in
Canada  of broader protections similar to those found in the United States, where
section 7 of the National Labor Relations Act extends protection to concerted
action by employees regardless of whether they are unionized or even seeking to
unionize. Beginning with a comparison of the current legislative schemes in the
two countries, the authors argue that because the limitations to concerted action
in Canadian labour law are similar to those in the U.S., the proposal is unlikely
to disturb settled law beyond its intent. The positive impacts of adopting section
7-like protection in Canada are canvassed, which include encouraging stronger
employee  voice, allowing for increased realization of the constitutional guar-
antee of freedom of association, and enabling experimentation with non-union
forms of collective representation. These changes would help to balance work-
place power dynamics, and allow workers more flexibility in choosing how to
advocate for themselves.


      A  recent  article in the New  York  Times   described  low-wage
workers'  efforts to collectively address grievances  with management
without  seeking  union  representation. For  example,  with  the assist-
ance  of the  non-union   migrant  rights collective Somos   un  Pueblo
Unido,'  a group  of restaurant workers  whose   employment had been

  * Associate Professor, Temple University Beasley School of Law. Email: brog-
    ers@temple.edu. This essay draws on earlier research of mine that was supported
    by the Roosevelt Institute's Future of Work Initiative.
 ** Co-Director, Comparative Research in Law and Political Economy, Osgoode
    Hall Law School, York University, and Koskie Minsky LLP. Email: sarcher@
    osgoode.yorku.ca, sarcher@kmlaw.ca. The research assistance of David Gruber
    is gratefully acknowledged, as are comments from Sara Slinn and Harry Arthurs,
    Osgoode Hall Law  School; Stephanie Ross, York University; Pierre Brun of
    Melangon Marceau Grenier et Sciortino s.q.r.l.; Graham Cox, Canadian Union of
    Public Employees; and Deena Ladd of the Workers' Action Centre, Toronto.
  1 This might be loosely translated as we are a people united.

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