The policies underlying interest dispute settlement in British Columbia and New Zealand
University of British Columbia
Master of Laws - LLM
All the western industrial economies have had to devote their attention this century to ways of minimising the disruption that often accompanies contract negotiations in disputes of interest. This thesis examines the markedly differing means of achieving this objective in British Columbia and New Zealand. Chapters II and VII present the first point of difference: the administrative versus judicial solution to labour disputes. Chapter II portrays the intent of the British Columbia Legislative Assembly when it enacted the Labour Code of British Columbia in 1973, examines the language the Code employed in seeking to foreclose the court's intervention in labour matters, and observes those instances where the judiciary has disavowed the legislature's instruction to the courts. It is argued that for the judiciary to intervene further in the Province's labour relations would be both unwelcome and an unconstitutional denial of the rule enjoining judicial obedience to statute. Chapter VII presents the judicial solution to interest disputes for which New Zealand's Industrial Conciliation and Arbitration legislation is reknowned. Whereas British Columbia's objective has been to avoid the repercussions of judicial intervention in sensitive labour disputes, New Zealand's industrial legislation promotes the judicial solution on two levels: through the Arbitration Court upholding the Act's jurisdictional requirement in arbitration proceedings and through preserving the concurrent jurisdiction of the ordinary courts to entertain civil proceedings resulting from industrial action. Chapter 11A is a postscript to Chapter II. This appends the recent decision of the Supreme Court of Canada, delivered subsequent to the time of writing of Chapter II, determining for the first time that to insulate a provincially-constituted statutory tribunal from review of decisions on questions of jurisdiction is in violation of section 96 of the British North America Act, 1867. This renders henceforth the detailed examination of the Code's jurisdictional provisions of significance principally for jurisdictions where the "section 96" problem does not arise - where the sole issue is the appropriate drafting of an effective privative clause. Chapter III portrays in light of traditional Canadian labour policy the first innovation of the British Columbia labour statute: the replacement of all facility for normative intervention in interest disputes with procedures providing solely for accommodative intervention. It is explained why this is a significant development for Canadian labour policy. But probably the most significant development is the British Columbia Labour Relations Board's rejection of the American jurisprudence and the per se rules attaching to the categories of bargaining subjects in the United States. This is examined in Chapter IV. Whilst the prospect of some residual limitation on the substantive scope of bargaining under the British Columbia statute is not discounted entirely, the Board's policy has been to remove all legal issues from the bargaining table. Chapter VII, examining the jurisdictional requisite of "dispute" under the Industrial Relations Act 1973 (N.Z.), provides the contrast. Under the New Zealand statute the question must first be asked whether the proposed subject for bargaining satisfies the legal description of permissible bargaining topics. It is submitted that no longer is this a defensible question in view of the vast industrial changes of the present century. Chapter VIII, entitled "The Legality of Industrial Action in New Zeal and", provides the third point of contrast between the two systems. Whereas the legitimacy of the economic sanction is fundamental to the Labour Code's policy of free collective bargaining, New Zealand's legislative aversion to strikes, dating from the first Industrial Conciliation and Arbitration statute of 1894, is equally manifest under today's Industrial Relations Act 1973. Chapter V, entitled "Industrial Conciliation and Arbitration", provides the necessary background on the procedures and institutions of the New Zealand system, and shows the extent to which successive New Zealand governments have relied upon the Industrial Conciliation and Arbitration system as a broader instrument of wages-control. The primary question raised on this examination concerns the New Zealand system, whether it could not learn from the British Columbia reforms of 1973-74.
Law, Peter A. Allard School of