Released on June 01, 2013, 1:00 AM EST
Tag #: 657
Institutional Dysfunction: Loss of productivity and public trust


City’s Director of Human Resources Kevin Fowke turns a blind eye
Violation of collective bargaining rights cost $ 321,112.77 for tax payers   

Fowke: Incompetent and negligence

WikiLeaks Sudbury’s investigative team, uncovered that the city paid $ 321,112.77 (2005 - 2011) in compensation as a result of violation of collective bargaining rights of their own employees. This is a clear indication of serious workplace issues in which the Human Resources Department failed to find a solution. It seems many departmental managers are taking full advantage of administrative immunity provided by the Human Resources Department and continually engage in violation of collective bargaining rights of their employees. The Human Resources department does not hesitate to hire external lawyers to defend their actions, the cost of which is actually burdened upon the tax payers.  For many simple issues raised in the workplace that were not addressed immediately, it is a common practice to redirect and forward these matters to mediation and arbitration at the cost of tax payers. In reality, however, most of these cases finally settle in favour of the employees and their settlements are paid from the tax dollars.

This is a clear reflection of the gross incompetence of top bureaucrat Kevin Fowke in the Human Resources division managing human resources issues in the City.  

Fowke must be held accountable for his lack of oversight on activities in his department. Not only must he be held accountable for this,  but also for turning a blind eye over the years while this ongoing loss of tax dollars was permitted to continue unchecked. It is necessary to take strong action to show that incompetence will not be tolerated and negligence, causing the loss of hundreds of thousands of tax dollars, will result in the dismissal of all those responsible in his department.

Table 1: Summary - Settlement paid from tax dollars violating collective bargaining rights

Total settlement cost: $ 321,112.77
Total cases settled: 66
Average cost per case to tax payers: $ 4,931.35

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Editorial
Released on June 01, 2013 at 1:00 AM EST

The original article initially published on Labour, (46), 251-251. Excerpts from the article as follows.   

Law, industrial relations and the state: pluralism or fragmentation? The twentieth-century employment law regime in Canada

Employment is a mere subset of the broader domain of work; it emerged as a specific legal category in England in the 19th century to specify the rights and obligations that comprised a bilateral labour market contract. Work, by contrast, captures a much broader range of productive activity, including the labour of small independent producers and women in the household. The false equivalence of the terms "employment" and "work" in the 20th century is evidence of the hegemony of the neo-classical vision of the labour market in which employment dominates. Our focus on employment reflects the separation of home and waged work that characterized the new industrial age. By the turn of the twentieth century, the once dominant form of family production was becoming a faint memory in most parts of Canada, replaced by a new sexual division of labour characterized by male employment and female domestic labour -- an arrangement that deepened and expanded women's dependence on men's wages. One negative consequence of our focus on employment, then, is that it privileges the work experience of men over that of women. We also are aware that an exclusive focus on employment is becoming less defensible at the end of the 20th century as owners of capital seek ways of getting work done that does not entail entering into employment relations. Indeed, the coherence of the legal categories of employer and employee is being undermined by this inventiveness. We certainly doubt that it will be defensible for a history of the legal regulation of work in the 21st century to focus on the subcategory of employment. 

Yet, despite its ideological baggage, gender-blindness, and partiality, a review of the 20th century focused on the legal regulation of employment is sensible both because employment has been the principal means through which productive relations were established and governed and because employment relations have been the primary subject of the legal regulation of work through most of this century. Other ways of organizing work have been subject to far less legal control, so that what is really notable in this regard are law's silences and exclusions, not its words and actions. Employment relations became a magnet for legal regulation precisely because it was through these relations that most families obtained access to the means necessary for their survival and reproduction and because, from time to time, their conflictual character threatened to disrupt the social order. Our analytical lens is that of a regime of legal regulation by which we mean the constellation of laws, institutions, and ideologies through which employment relations are organized and legitimated. This heuristic allows us to capture both the continuities and dynamics of legal regulation as it developed over the 20th century. Central to the regime is the contract of employment within which the judiciary inscribed the legal subordination of the worker by implying duties of obedience and loyalty derived from older notions of status at the same time that it endorsed free exchange and exclusive private property rights. This juridical construction, however, could not resolve the inevitable conflicts over the employment relation and its governance fuelled by conflicting material interests and competing visions of justice. Three conceptions of justice have been invoked to deal with these conflicts. One relies upon market competition for labour to limit the abuses of property rights. Voluntary individual contracts, enforced by the courts, guarantee workers market freedom. In another conception of justice, workers' collective action to assert and enforce employment rights provides the crucial mechanism for the achievement of justice by offsetting the employers' superior bargaining power. Democratic freedoms, especially those of expression and association, provided the legitimacy for workers' collective institutions and actions. The third conception is rooted in democratic politics and involves direct state regulation of the terms of employment in accordance with politically determined norms of social and economic justice. These conceptions of justice were institutionalized in the employment law regime, albeit by no means in equal measure. 

By 1900, the regime consisted roughly of three parts: the common law contract of employment, the law of collective action, and statutory minimum standards. While it is tempting to associate each conception of justice with a component of the legal regime, reality defies such neat categorizations. Class struggle and ideological conflict were endemic throughout the entire regime and in each of its components, although the level of contestation ebbed and flowed and its location varied. The third crucial choice we made is to emphasize the theme of fragmentation, and in particular, the role of law in supporting, constituting and challenging fragmented labour markets. This theme was selected because it allows us explicitly to take issue with industrial pluralism, the predominant approach to post-war Canadian employment relations. According to it, after World War II, collective bargaining legislation administered by independent labour boards combined with a system of grievance arbitration to enforce collective agreements, to create a fundamentally different regime in which workers enjoyed the benefits of industrial citizenship. By contrast, we argue that collective bargaining expanded selectively and that most workers relied on individual contracts and minimum standards for the determination of their working conditions. Moreover, it was not simply the case that there was a plurality of institutions for the determination of conditions, but that the contours of labour market fragmentation significantly affected workers' access to the regime's various components. Canada's highly regionalized political economy is one important source of fragmentation. Another is its complicated and decentralized political geography that divides state power between national, provincial, and local authorities. 

A third dimension of fragmentation is captured by labour market segmentation theory, which identifies primary and secondary labour markets and emphasizes ascribed characteristics such as gender and race, and institutional factors, such as state policies and union structures and practices, as determinants of where workers are likely to be located. Workers in primary labour markets are employed by large employers, partially shielded from competition, where collective bargaining has taken hold to produce conditions of employment that are comparatively good, while those in secondary markets are employed in more marginal and competitive sectors of the economy, where unionization rates are low, jobs lack security, and pay is poor. Although fragmented labour markets sometimes appear to be "natural" categories arising from "objective" differences, they are socially constructed. While these processes are complex, involving both structure and agency, we hope to show the salience of law as an instrument and an ideology through which fragmentation is institutionalized, reinforced, and contested by the actions of employers and workers. We hope also to demonstrate that an examination of the history of employment law as an instrument of fragmentation captures some of its most important features and dynamics in 20th-century Canada and illuminates the relations between its different components. To capture the continuities and dynamics of the legal regime, we have divided the century into two periods that allow us to amplify and capture some of the most significant changes in the patterns of legal regime institutionalization. We have labelled the period from 1900 to 1948 as "industrial voluntarism" in order to capture its central characteristic: the overwhelming predominance of legal norms associated with market regulation, subject to a marginal role for state intervention through limited compulsory conciliation and direct regulation only for the most vulnerable. 

We have adopted the more conventional term "industrial pluralism" to identify the second period, from 1948 to 2000 to recognize that the era following World War II signals the legal institutionalization of workers' collective institutions and the simultaneous growth of direct state regulation of the terms of the employment contract as a subordinate mechanism to collective bargaining. It also marks the development of an industrial jurisprudence and a conception of industrial democracy to replace the hegemony of contract law as the organizing principle of employment. II. Industrial Voluntarism, 1900-48 Constructing the Regime of Industrial Voluntarism, 1900-1914 At the turn of the century, the transition from competitive to monopoly capitalism profoundly altered class relations. The National Policy promoted the expansion of manufacturing capacity and resource exploitation, both of which depended upon an infusion of foreign capital and immigrant workers. The benefits of this unprecedented economic growth, however, were not enjoyed equally. Between 1900 and the outbreak of World War I, productivity and prices soared, but wages lagged behind as working people struggled unsuccessfully to keep up with inflation. They were hampered in their efforts by increasing class fragmentation. The sexual division of labour both between and within the household and workplace was deeply entrenched, even as women's employment increased. In general, women's wages were roughly 40 to 60 per cent of men's. Ethnic and racial fragmentation grew in significance as different immigrant groups were recruited by employers to perform specific types of labour. The skilled crafts were composed almost exclusively of workers of Anglo-Saxon descent who, through their unions, pursued policies of ethnic and racial exclusion and advocated immigration restrictions.  

The Supreme Court of Canada has issued a number of decisions that have strengthened employers' obligations to provide a discrimination-free workplace and to make accommodations for individuals who are adversely affected by workplace rules, policies, or practices. Moreover, the Court has also imposed corresponding duties on unions not to discriminate and to make workplace accommodations. It has also issued a number of decisions that have tempered the obvious harshness of the common law of employment and reinforced a remedial approach to the interpretation of employment standards legislation. However, although the Supreme Court of Canada has acknowledged the inequality in bargaining power in the labour market, it has refused to take any significant initiatives to ameliorate it on the ground that is it is the appropriate responsibility of elected officials. Occasionally, this hands-off approach has redounded to the advantage of organized labour; in Lavigne the Court upheld the use of the compelled dues check off for political purposes. Moreover, in 1999, the Court made a slight detour from its position of deference to legislatures in the realm of collective bargaining when it held that legislative restrictions on peaceful consumer leafleting for informational purposes by unions amounted to an unjustifiable violation of the Charter's guarantee of freedom of expression. However, in permitting the practice of consumer leafletting in the labour context, the Court was careful to distinguish this informational activity from the coercive activity of a conventional labour picket. Like collective bargaining legislation, the fortune of employment standards statutes has depended upon the political persuasion of the government in power. Generally, however, improving minimum employment standards or revising them to meet the changed labour market has been portrayed as pricing Canadian workers out of jobs.

Editor
WikiLeaks Sudbury
June 01, 2013

Reference:
Fudge, J., & Tucker, E. (2000). Law, industrial relations and the state: Pluralism or fragmentation? The twentieth century employment law regime in Canada. Labour, (46), 251-251