Example Law Essay

Collective Law In Any Two Countries

Every European country controls a distinct system of judicial enforcement and labour legislation. This is most often closely related to the process of collective bargaining and arrangements of social partner consultation. Traditionally, collective labour law adopts the body of rules which govern the relationships between the collectivity of the employees and the employer of a group of employers. One may think of following laws, in this context:

  • The right to trade freedom of union

  • The right to workers' participation within the company in decisions affecting their interests

  • The right of employees and employers to establish an organization at their own choosing from the perspective of promotion of their professional concerns

  • The right to autonomous collective bargaining

  • The right to conclude collective agreements.

Furthermore, the rules relevant to economic welfare, including strikes and lockouts as well as several measures that aim at preventing the settlement of collective labour conflicts, come under the collective labour law. It can be clearly stated that these issues have stayed within the national jurisdiction. And the collective measures that are proposed for the United States and Canada are mostly so contradictory and controversial that the consensus among the Member Stated and among both sides of industry seems to be almost impossible.

The purpose of this research paper is to show the management a brief comparison of Canadian and US labour law, because people would assume that the labour laws in the US are similar to those in Canada.

When it comes to depicting Canadian law firms, terms like small, medium and big do not make much sense today. The fact being complex and rapidly evolving landscape, with firms structured around changing client demands. That means a few international outposts or a lot of lawyers having parallel training in applied sciences or business. Whatever be the size of the law firms, legal specialization still remains the common dominator all over these firms thereby permitting practitioners to nurture their selected crafts to an art form. By recognizing the rapidly growing size and sophistication of several of the country's top-level boutiques, mainly in areas that need multiple areas of expertise like technology law and intellectual property, Canadian Lawyer magazine has extended its definition of the size constituting a 'boutique'. Furthermore, 52 law boutiques have been identified across nine practice areas widely seen as the "go-to" experts by their colleagues. Of course, litigation boutiques are a class of their own. Admiralty and transportation law has been a specialized niche in Canada, unlike the USA, that belongs to the boutique model. An area covering marine insurance law, shipping law, and related litigation, together with the marine component of Canadian offshore for oil and gas activities, this practice is rapidly expanding along with Atlantic Canada's booming offshore oil industry. Most of these firms work as Canadian legal counsel for various international protection and indemnity clubs, cargo, hull and machinery. This also includes general insurers across the world. Canada's bankruptcy and insolvency bar is minor, where same players turn up frequently in most of the significant cases. Moreover, several boutique founders have said that their business fills a niche produced by the need of servicing clients of larger firms during conflict cases, which is considered as a significant source of work referrals.

Several firms that were set up as business law boutiques initially specializing in securities law have morphed into full-service firms by creating newer practice areas as they grow. Of course, nowadays, the boundaries for any business law practice has grown hazy, with clients demanding the skill of a deal maker, consummate negotiator, litigator, contacts expert, competition law expert, etc. together with the well-established cross-border affiliations with law firms located within the United States and overseas.

Canadian employment and labour law poses several potential conflicts for full-service law firms with most firms being reluctant to risk sacrificing a future corporate authorization for a one-off employment file. Furthermore, many of Canada's most remarkable labour and employment boutiques are sub-sets of bigger firms. As far as the United States is concerned, it is equipped with the Employee Free Choice Act which is undoubtedly among the most significant and controversial bills confronting the new Congress. Opponents of EFCA have tried to portray the bill as an undemocratic, radical and dangerous piece of legislation that may deprive the voting rights of millions of American workers, thereby destroy an already fragile economy. Indeed, one of the country's biggest management law firms has stated that it requires revolutionary changes to labour law, unlike the one in Canada, while other opponent has attempted to harm its radical approach towards first contract bargaining. However, in reality, it has by far been the modest piece of legislation that establishes rights for recognition and bargaining for US workers, weaker than those enjoyed by the Canadian workers.

Recent developments in some emerging economies describe how far US lags other democracies with respect to the protection of bargaining and recognition rights. Among developed economies, USA is the only nation that possesses a sophisticated industry worth thousands of millions of dollars annually dedicated entirely to assisting management resist collective bargaining. Nonetheless, many US union avoidance firms have sought international markets for their expertise. One such large firm operating in Canada, proving to clients that it enjoys an international reputation to eliminate union incursions, has carried out many high profile union avoidance campaigns with considerable effect.

On the other end of the scale, the Canadian system based on industrial relations is widely similar to that of the US. Moreover, the labour laws in many Canadian provinces have had similar kind of provinces as those of the EFCA. But the Canadian labour law is different than its US counterpart in two essential aspects:

  • Firstly, it id decentralized having only about 10 % of employees that is covered by federal labour law; most of the remaining 90% belong to 0 different provincial laws. By contrast, US law is highly centralized, with a rigid and broad federal pre-emption doctrine that restricts all but the most marginal policy experiment at the local and state levels throughout the past decades.

  • Secondly, the Canadian labour law is much more responsive to political alignments in comparison to its US counterpart. That is, whenever there is modification in provincial government, a significant reform is often seen in the province's labour law. This does not hold true in the United States, wherein the need to obtain a super majority of about 60 votes in the Senate in order to overcome a filibuster presented a formidable hurdle in the path of reform proposals for labour law in recent decades.

Furthermore, Canadian labour law also offers an interesting comparison with the US since the policy debate is very different, even though the labour policy issues are very similar to the ones on the United States. labour law reform in Canada, for the most part, is not accompanied by litigious considerations regarding the need to secure the sanctity of the "secret ballot", but only a recognition that, even with Canada with its rapid elections and strict adherence to deadlines, limitations on employer electioneering, and tougher punishments for unfair management practices, majority signing up makes organizing easier for workers, whereas contested representation elections make organizing much more difficult. Therefore, by employing the central government practice, the adoption majority sign up and several other reforms come at the forefront, but when the political arrow points towards the opposite direction, contested elections are reintroduced. Presently, five Canadian jurisdictions employ laws that have majority sign up processes. These jurisdictions are the federal jurisdiction, Quebec, Prince Edward Island, Manitoba, and New Brunswick.

Opponents of the EFCA within the United States have been repeatedly pointing towards Canada as a country wherein, as direct outcome of their experience with majority sign-up, policy makers and law makers identify the supremacy of mandatory elections. Nine in ten Canadian provinces have used majority signup in the 1980s, while only four in ten use it nowadays. Moreover, about two decades ago, majority sign up was employed by 90% of Canadian employees; today, however, these same provisions cover approximately 40% of Canadian employees. However, claims regarding majority sign being discredited in Canada and replaced by United States-style elections are totally misleading. Firstly, as aforementioned, union elections in Canada are totally different from management-dominated NLRB elections. Secondly, five Canadian jurisdictions having large and influential ones like Quebec and the federal jurisdictions, still use majority sign up. Lastly, the policy position is way beyond static and Canadian laws that are more malleable that their US counterparts. For instance, in May 2008, the Ontario Legislature took introduced a bill in order to reintroduce majority sign up. Hence, majority sign up may once again become a standard in Canada.

Toward that end, Canada's experience with majority sign up is intimately related to the current US debate in a rather more direct way. Furthermore, the primary refrain of employer groups who opposed to majority sign up is that it would expose employees to intimidation and coercion by unprincipled union organizers. So what does the Canadian experience suggest? Till the time the Conservative Harris government had ceased using majority sign up in 1995, this system of union recognition had functioned in Ontario for almost half a century. Yet the leading scholar for the Canadian labour law, Professor Harry Arthurs, lately said that he was unknown of a single case in which the employer complained that union illegally coerced workers into forming a union. As a result of its protection for bargaining and recognition rights, bargaining coverage in Canada is more than double of the US level; nearly 31.5% overall, from over 39% in Quebec to below 25% in Alberta.

The passage of the North American Free Trade Agreement (NAFTA) has made it very common for US businesses to expand into Canada, either by entering into contractual collabouration with firms already settled in Canada or by establishing international subsidiaries. Some managers assume that NAFTA entails that common employment and labour laws apply in all two countries; however, that is not the case. Though NAFTA comprises of a side agreement known as the North American Agreement on labour Cooperation, NAALC that needs all two countries to promote the same eleven basic rules, any business running internationally must still abide by the labour laws in effect in the country of operation. Therefore, as US firms grow, it becomes essential for them to the aware of the Canadian law, particularly the laws governing employment and labour.

Specifically, the focus is given on the most significant differences between the labour laws in those two countries in seven areas, namely:

  • Union security.

  • Certification processes

  • First contract arbitration

  • Latest technologies

  • Successorship

  • Strike replacements, and

  • Employee participation programs

These seven areas are essential because with every area, there is empirical work that addresses the issue and their effects. Therefore, management must be aware of how the laws involved these areas can have an impact in their businesses. These seven topics are discussed in the order in which they might take place within a business, that is, a union must be certified before the management can bargain. The Canadian experience is typically instructive. Canada has more or less the same type of economy, similar employers and has undergone the similar changes that have been previously described with respect to the United States. In fact, there are major differences between the National labour Relations Act and the labour laws in Canada. There is a procedural dissimilarity between the labour laws of Canada and the US which should be mentioned concerning the jurisdiction of the federal labour statutes in the two countries. In the US, the NLRA includes the wide majority of the nation's private sector employees. However, in Canada, the Canada labour Code covers below 10 % of the nation's employees. Next, in Canada, labour legislation is mainly a provincial matter and the discussion concerning the Canadian labour law will actually be about the provincial laws across Canada.

Certification procedures

It is common knowledge that the private sector unionization rate within the USA is gradually degrading since a number of decades. According to the latest figures available, nearly 10.4 per cent of the US labour force or 9.5 million private sector workers in the US belonged to unions in 1994. Comparatively, the unionization rate in Canada has been constant at 33 % or greater since 1976. Furthermore, the membership trends within the two countries, comparing the decrease in the percent managed in the US with the increase in Canada during the past 20 years.

Most of the decline in the percent managed by the US is assigned to the incapability of unions to win the right to indicate newer units of employees during representation elections. Additionally, many researchers blamed the dismal union success rate during representation elections on the NLRA and reported that Canadian labour law is more favourable for unions that attempt to organize new units of employees. Indeed, the traditional organizing campaign throughout the US is renowned:

  • The union tries to get signatures on authorization cards from the employees within a bargaining unit;

  • Once the signatures are received from at least 30 % of the eligible employees, a petition if filed for election with the National labour Relations Board (NLRB). Then, the board conducts a hearing in order to resolve procedural questions with respect to the election

  • Then, a long and contentious pre-election campaign is organized

  • Finally, the election is held.

Each of these steps occurs in that order in almost every union organizing campaign in the US.

Furthermore, there are chances for employers to make it even more difficult for unions to persist in representation elections at every one of these steps. The certification/ organizing process is very different across Canada. Even though the particular certification procedures vary from one province to another, the laws governing union certification in Canada usually make it easier for unions to be selected for representing a unit of employees in ways more than one.

Bibliography

Abraham, S 1997, 'Relevance of Canadian labour law to US firms operating in Canada', International Journal of Manpower, Available at <http://www.accessmylibrary.com/article-1G1-20312673/relevance-canadian-labour-law.html>.

Aaron, B 1993, International Labour Law Reports, Kluwer Academic Publishers, USA.

Canadian Lawyer Magazine 2010, Survey: Canada's leading law firm boutiques, viewed 12 May, 2010, <http://www.canadianlawyermag.com/Survey-Canadas-leading-law-firm-boutiques.html>.

Hore, E 2000, 'A Comparison of United States and Canadian Laws as they Affect Generic Pharmaceutical Market Entry', Food and Drug Law Journal, vol. 55, pp. 373-380.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, viewed 12 May, 2010, <http://labourcenter.berkeley.edu/labourlaw/union_recognition09.pdf>.
Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition - comparison of Canadian and American copyright law, Information Outlook, viewed 11 May, 2010, <http://findarticles.com/p/articles/mi_m0FWE/is_2_5/ai_71359429/>.

Canadian Lawyer Magazine 2010, Survey: Canada's leading law firm boutiques, viewed 12 May, 2010, <http://www.canadianlawyermag.com/Survey-Canadas-leading-law-firm-boutiques.html>.

Ibid.

Aaron, B 1993, International Labour Law Reports, Kluwer Academic Publishers, USA.

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, <http://labourcenter.berkeley.edu/labourlaw/union_recognition09.pdf>.

Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition - comparison of Canadian and American copyright law, Information Outlook, <http://findarticles.com/p/articles/mi_m0FWE/is_2_5/ai_71359429/>.

Ibid.

Hore, E 2000, 'A Comparison of United States and Canadian Laws as they Affect Generic Pharmaceutical Market Entry', Food and Drug Law Journal, vol. 55, pp. 373-380.

Abraham, S 1997, 'Relevance of Canadian labour law to US firms operating in Canada', International Journal of Manpower, Available at <http://www.accessmylibrary.com/article-1G1-20312673/relevance-canadian-labour-law.html>.

Ibid.

Hore, E 2000, op.cit

Canadian Lawyer Magazine 2010, Survey: Canada's leading law firm boutiques, <http://www.canadianlawyermag.com/Survey-Canadas-leading-law-firm-boutiques.html>.

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, <http://labourcenter.berkeley.edu/labourlaw/union_recognition09.pdf>.

Ibid.

Abraham, S 1997, op.cit.

Abraham, S 1997 op.cit..

Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition - comparison of Canadian and American copyright law, Information Outlook, <http://findarticles.com/p/articles/mi_m0FWE/is_2_5/ai_71359429/

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, <http://labourcenter.berkeley.edu/labourlaw/union_recognition09.pdf>.

Logan, J 2009, op.cit.