Academic journal article Labour/Le Travail

Forging Responsible Unions: Metal Workers and the Rise of the Labour Injunction in Canada

Academic journal article Labour/Le Travail

Forging Responsible Unions: Metal Workers and the Rise of the Labour Injunction in Canada

Article excerpt


THE SUBJECT OF THIS ARTICLE is a series of strikes conducted chiefly by metalworkers in south central Ontario between 1900 and 1914. These strikes are significant because of the novel response to them by employers; they sought and obtained legal injunctions on the grounds that the goals pursued or the means used by the strikers tortiously interfered with their right to conduct business. Damage actions against unions and their officers were also pursued. Courts were sympathetic to these employer claims and the resulting legal interventions placed significant limitations on the scope of lawful trade union activity. These restrictions remain a central part of modern labour law. (1)

Our purpose, however, is not merely to retrieve the largely forgotten genealogy of current law. Rather, this study is part of a larger project examining the role of law in constituting, maintaining, shaping, and contesting unequal power relations between workers and employers in Canada prior to the advent of statutory collective bargaining schemes during and after World War II. (2)

A study of labour history through the prism of the law yields important insights on two of the debates raging within the discipline. The first is on the role of institutions and, in particular, the question of their autonomy and the extent to which the well-being of the labour movement is tied to a supportive state. The second is on the role of discourse and, in particular, legal discourse in setting up categories which delimit the realm of legitimate claims, organize those claims in particular ways, and privilege some claims over others.

The debate over the role of institutions and the state has deep roots within the labour movement and among labour historians. Within the labour movement, proponents of voluntarism and syndicalism have struggled with labourists and social democrats over the merits of collective bargaining and direct action, as opposed to electoral politics and direct state regulation. The former tend to see the capitalist state as inherently hostile and believe that labour should strive for a "hands off" policy, while the later hold that workers can make substantial progress through parliamentary reforms. (3) This debate also has deep resonance between labour historians and is overlaid by disagreements over the independent effects of institutions on class relations.

The writing of labour history is sensitive to the shifting fortunes of the labour movement. The "old" labour historians tended to focus on the development of the institutions of collective bargaining and were often closely associated with industrial pluralists who viewed the achievement of statutory collective bargaining as a progressive outcome of past struggles. Many of these studies were whiggish, portraying law's development as a linear progression from repression to toleration and, eventually, to the promotion of unions and collective bargaining. (4)

The "new" labour historians, rather than celebrating existing labour relations schemes, often viewed them as mechanisms that had coopted unions, making them managers of discontent rather than agents of progressive change challenging an order in which workers interests were subordinated to those of capital. Buoyed by renewed radicalism and rank and file militancy in the 1960s, these researchers sought to rediscover an oppositional working-class culture and tradition of resistance on the shop floor and in the streets. In short, they sought to recover the "suppressed alternatives" that failed to become institutionalized. (5)

Since then, there have been calls for a renewed emphasis on and reassessment of industrial relations institutions, including labour law, from a variety of quarters including neo-institutionalists, (6) regulation theorists, (7) industrial relations theorists, (8) and labour (9) and labour law (10) historians. As in the past, much of this theorizing is stimulated by current events: the declining fortunes of the labour movement and socialist and social democratic political parties. …

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