Eric Tucker

Eric Tucker
York University · Osgoode Hall Law School

About

77
Publications
15,732
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693
Citations
Citations since 2016
20 Research Items
367 Citations
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20162017201820192020202120220204060
20162017201820192020202120220204060
20162017201820192020202120220204060
Introduction
Skills and Expertise

Publications

Publications (77)
Article
Capitalist society seems particularly disorderly of late, a disorder contributing to the beginnings of what we hope will be a renewal of Marxist legal scholarship. This essay reviews some key developments in Marxist analysis of law from the 1970s to the present. Over all, our essay traces a back and forth between Marxists’ emphasis on theoretical i...
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Platform-mediated work, characterized as digital intermediation between workers and buyers of labour service, most famously exemplified by Uber, reveals how the transformation of the forces of production is reshaping relations of production. Using a political economy approach, this article takes us behind market exchanges between workers, platform...
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Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (...
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This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime agains...
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Constitutional labour rights in Canada now protect workers’ freedom to organize and bargain collectively and to strike. These associational freedoms are especially important for public sector workers, the most frequent targets of legislation limiting their freedoms. However, the Supreme Court of Canada judgments recognizing these rights and freedom...
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It is widely agreed that there is a crisis in labour/employment standards enforcement. A key issue is the role of deterrence measures that penalise violations. Employment standards enforcement in Ontario, like in most jurisdictions, is based mainly on a compliance framework promoting voluntary resolution of complaints and, if that fails, ordering r...
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Full-text available
This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario's ESA enforcement regime agains...
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Canadian temporary foreign worker programs have been proliferating in recent years. While much attention has deservedly focused on programs that target so-called low-skilled workers, such as seasonal agricultural workers and live-in caregivers, other programs have been expanding, and have recently been reorganized into the International Mobility Pr...
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This article critically assesses the compliance model of employment standards enforcement through a study of monetary employment standards violations in Ontario, Canada. The findings suggest that, in contexts where changes to the organisation of work deepen insecurity for employees, models of enforcement that emphasise compliance over deterrence ar...
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Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encour...
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The purpose of this paper is to advance an approach to analyzing decision-making by front line public officials. The notion of discretion in front line decision-making has been examined widely in the law and society literature. However, it has often failed to capture the different kinds and levels of decisions that enforcement officials make. Takin...
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The Wagner Act Model has formed the basis of Canada’s collective bargaining regime since World War II but has come under intense scrutiny in recent years because of legislative weakening of collective bargaining rights, constitutional litigation defending collective bargaining rights and declining union density. This article examines and assesses t...
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Causation analysis is densely political in at least three ways. First, because causation is crucial to our system of attributing moral, legal, and political responsibility, causation arguments are advanced for purely instrumental purposes. They do political work. Second, because any particular occurrence is the outcome of an almost infinite number...
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Any attempt at a historical overview inevitably involves contentious choices, including those of focus, the analytic lens to deploy, and the themes that structure the narrative. The first and most controversial choice that we have made is that of focus. Our topic is the legal regulation of employment in 20th-century Canada. Despite the fact that du...
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In most contemporary occupational health and safety (OHS) regimes, great emphasis is placed on amplifying worker voice in regulation through worker health and safety representation in the employers’ OHS management system. Historically, these regimes were designed on the assumption that the workers who would use these mechanisms were full-time worke...
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This paper examines strikes as an expression of worker voice. It begins with a discussion of the connection between voice and strikes. It then documents the sharp decline in strike frequency across the common law world. It looks more closely at strike rates in Canada, where strike rates have declined in both the public and private sectors and at a...
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New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the...
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Abstract The topic of this report is the legal concept of employment because,employment,is the most important concept for determining the legal protection associated with different forms of paid work. Employment,establishes the boundary,between,the economic,zone of commercial relations, entrepreneurship, and competition, on the one hand, and the ec...
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In recent years there has been an outpouring of popular and scholarly writing on the constitutionalization of labour rights. In this paper I seek to add to this literature in three ways. First, at a conceptual level I unpack two important dimensions of labour rights, their thickness and their hardness. Second, in order to comprehend the multiplicit...
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This report maps current enforcement and compliance measures and practices in Ontario’s regulation of employment, particularly as they relate to precarious employment. It evaluates the effectiveness of Ontario’s enforcement regimes, focusing on Employment Standards (ES) and Occupational Health and Safety (OHS) legislation, and sets these regimes in...
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This article examines the development of employer liability for workplace injuries in Ontario, Canada, between 1861 and 1900. In the earliest cases, the judiciary slavishly followed English common law precedent, which effectively prevented injured workers from successfully suing their employers. The unpopularity of the law generated pressure for le...
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The distinction between employees and independent contractors is crucial in determining the scope of application of labour and employment legislation in Canada, since the self-employed are, for the most part, treated as entrepreneurs who do not require the statutory protections accorded to employees. Yet statistics indicate that most self-employed...
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This paper does not evaluate the overall effectiveness of this technique, but rather focuses on one particular way in which the legislature has attempted to control judicial interpretation, the command to interpret statutes liberally and purposively. Typical of such a direction in section 10 of Ontario’s Interpretation Act. This essay proceeds hist...
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It is the purpose of this paper to contribute to a discussion of the early development of occupational health and safety regulation in Ontario. Why was the state empowered to regulate occupational health and safety in the late nineteenth century, and why was this power exercised with such little effect? This paper will focus on the later question....
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This paper is a comparative study of worker participation in occupational health and safety regulation in Sweden and Ontario,k Canada, based on research conducted in the late-1980s when worker militancy on the issue was strong in both jurisdictions. It examines differences in the extent of legal participation rights and emphasizes how differences i...
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This paper will examine two issues that have arisen as a result of the administrative fairness revolution. The first issue arises in response to the activist stance that the courts adopted in the late 1960s and 1970s in the exercise of their supervisory powers to delegated powers. This development sparked a revival of academic interest in administr...
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Street railway strikes in the late nineteenth and early twentieth centuries were frequently the occasion for large-scale collective violence in North American cities and challenged the capacity of local authorities to maintain civic order. However y this was only the most visible manifestation of the challenge that street railway workers' collectiv...
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In the B.C. Health Services Subsector case [2007] 2 S.C.R. 391, the Supreme Court Canada relied, in part, on the history of Canadian labour law to support the conclusion that collective bargaining was an activity that was protected under the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. Thus, it is likely that th...
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Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspec...
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In many high-income countries, such as Canada and the UK, there has recently been a significant increase in the number of migrant workers. This paper examines the occupational safety and health implications of this phenomenon. We identify a framework for assessing the occupational safety and health vulnerabilities of migrant workers, using a layere...
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The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly i...
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In many high-income countries, like Canada and the United Kingdom, there has recently been a significant increase in the number of migrant workers entering and participating in their labour markets. This article is concerned with the implications of this phenomenon for protective labour laws and, in particular, for occupational health and safety re...
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Street railway strikes in the late nineteenth and early twentieth centuries were often accompanied by high levels of public disorder. The challenge to public authorities, however, was not just in the scale of the disorder but also the disjuncture between the behaviour that a significant portion of the working-class community felt was legitimate in...
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This article is part of a larger study of the recurrent dilemmas that arise when protective labor law conflicts with the norms of capitalist legality. In this particular case, shareholder liability for unpaid workers' wages was first enacted in mid-nineteenth century New York State as a condition of providing investors with easy access to the corpo...
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The essence of the contract of employment is the performance of service in exchange for wages. As such, labor assumes a commodity form—a capacity that is bought and sold in labor markets. But because labor cannot be separated from its bearer, and is not produced for the market, it has been widely recognized as a special or fictive commodity that ha...
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In June 2007 the Supreme Court of Canada held that the right to collective bargaining is a constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. In so doing, they overruled a twenty-year old line of precedent that had rejected that very proposition. The court rested its current position of four gr...
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The article draws on the rapidly growing field of citizenship studies to map and explore the dynamics of contemporary occupational health and safety (OHS) regulation. Using two key dimensions of OHS regulation (protection and participation), the author constructs four ideal types of worker citizenship (market, public, private industrial, and public...
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Over a million self-employed Canadians work every day but many of them not entitled to the basic labour protections and rights such as minimum wages, maternity and parental leaves and benefits, pay equity, a safe and healthy working environment, and access to collective bargaining. The authors of Self-Employed Workers Organize offer a multi-discipl...
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From the beginning of the free-trade era one contentious area has been the impact of trade liberalization on labor law. Opponents of NAFTA (and some supporters) predicted a regulatory race to the bottom (RTB) would ensue leading to increasingly deregulated labor markets. The result would be weaker collective bargaining laws, lower minimum standards...
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Despite the comprehensiveness of neo-liberal restructuring in Canada, it has not proceeded uniformly in its timing or outcomes across regulatory fields and political jurisdictions. The example of occupational health and safety (OHS) regulation is instructive. This article compares recent OHS developments in five Canadian jurisdictions, Alberta, Bri...
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In 1947, Bora Laskin, the doyen of Canadian collective bargaining law, remarked that "Labour relations as a matter for legal study...has outgrown any confinement to a section of the law of torts or to a corner of the criminal law. Similarly, and from another standpoint, it has burst the narrow bounds of master and servant." That standpoint was libe...
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This article is part of a larger study of Canadian labor law before the advent of statutory collective bargaining, which questions the traditional periodization and the meanings of the categories. It is often an un-articulated premise that the exercise by employers of their superior economic power, as imparted and structured through the law of prop...
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The central point of this article, written in 1995, was that health and safety struggles can be at the vanguard of challenges to a legal social order that tolerates poor labour standards and high levels of worker exploitation. Workers who fear their work is making them sick or subjecting them to high levels of injury and disablement know first-hand...
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The paper will proceed as follows. It tells the Westray story in two parts, first, the decision to set up the mine and, second, the operation of the mine. These events illuminate the salience of the broader political economic context to an understanding of what happened. Further, the story gives the lie to the assumptions which underpin health and...
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Although the current generation of Canadian labour historians has extensively researched and written about the period of the first industrial revolution (roughly 1850-1900), they have, on the whole, paid relatively little attention to the development and role of labour law, including the legal regime under which trade unions formed and operated. Ra...
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The decline of American unionism is now a well-documented phenomenon. Its causes and consequences, however, remain the subject of intense debate. Regardless of one’s view of this development, it clearly poses a challenge to the traditional techniques for the legal regulation of the employment relationship, and especially for state-sponsored collect...
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The author reviews the historical development of the decision-making frameworks within which courts and the Legislature have made choices regarding the allocation of risks to health and safety in the workplace. Arguing that this development has been conditioned by the necessity of satisfying in a capitalist democracy conflicting demands to facilita...
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While the need to locate employment and labour law in its social context is now widely recognized, there is significant disagreement over the character of that social context, how law is located in it, and the way that law both shapes and is shaped by its social location. The importance of these disputes is not just theoretical because their resolu...

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