Constitutionalising labour rights

Speaker: Professor Judy Fudge (Kent Law School, University of Kent)
Chair: Professor Diamond Ashiagbor (SOAS)
Admission: Free
Accreditation: 1 CPD hour by the SRA (BSB pending)

Current Legal Problems 2014-15

Constitutionalising Labour Rights: Freedom of Association, Collective Bargaining and Strikes

Advocates of labour rights argue that constitutional protection of the freedom of association should be interpreted to include the rights to bargain collectively and to strike. They invoke international and transnational human rights instruments, as well as the observations of the International Labour Organization’s supervisory bodies, as normative resources that can be used by constitutional courts to advance such an interpretation.

In a series of decisions beginning in 2007, transnational courts in Europe and Canada’s constitutional court have begun to invoke these international norms when interpreting the freedom of association to include these labour rights. However, not only have these decisions provoked a backlash, they also seem to have reached their apogee.

In June 2012, the Employers’ Group, one of the three constituents of the ILO, interrupted the usual proceedings of the annual International Labour Conference (the ‘legislative’ forum) to challenge the right to strike. Both the European Court of Human Rights and the Canadian Supreme Court have retreated from an expansive interpretation of freedom of association that tracks the positions of the ILO’s supervisory bodies.

Adopting a forensic, rather than a normative, approach to recent attempts to constitutionalise ‘collective’ labour rights, this paper argues that the problem with this strategy for securing labour’s distinctive rights to bargain collectively and to strike is that it tends to focus exclusively on norms and values, and ignores the institutions and instrumentalities needed to put rights to work.

View more upcoming Current Legal Problems lectures

About the speaker

Judy joined Kent Law School in September 2013. She began her academic career at Osgoode Hall Law School in 1987, where she stayed until 2006, when she became Lansdowne Chair and Professor at the Faculty of Law at the University of Victoria, Canada. Judy has a BA (Hons) in philosophy from McGill University, an MA in philosophy form York University (Canada), an LLB from Osgoode Hall Law School, and a DPhil in law from the University of Oxford. Judy was elected as a fellow of the Royal Society of Canada in 2013 for her contribution to labour law scholarship.

Judy’s books include Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900 to 1948 (with Eric Tucker), Temporary work, agencies, and unfree labour: Insecurity in the new world of work (with Kendra Strauss), Challenging the Legal Boundaries of Work Regulation (with Kamala Sankaran, and Shae McCrystal), Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (with Fay Faraday and Eric Tucker), Work on Trial: Canadian Labour Law Struggles (with Eric Tucker), and Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (with Rosemary Owens).

About Current Legal Problems

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues. It covers all areas of legal scholarship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website