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Labor Law Comparison in Canada, Mexico, and the UK

Labor Law Analysis

As you will see throughout this labor law analysis, in general, the differences between the UK, Mexico, and Canada with regards to employment and labor practices are stark, but some similarities do exists. Let’s attempt a full and comprehensive discussion of the issues assigned that will only be limited by our own personal knowledge. This is not legal advice and a legal expert should be consulted that is licensed to practice law in each of the nations in question.

First and foremost, a discussion on the issues of labor, unfair dismissal, anti-discrimination, redundancy and pay cannot be fully engaged upon without an initial discussion of the governmental and legal structures of the nations mentioned (as it pertains to Labor and Employment laws). The reasons we suggest an understanding of governmental and legal structures as a first step include gaining an understanding of a portion of the litigation process, governing body’s jurisdictions how laws are created. As you will be made aware, this should help us in understanding the general legal stance of each nation’s employment and labor law, help us in gaining an understanding of the level of government regulations of the market as it pertains to our issues, as well as understanding any direct consequences on the issues themselves.

Governing Structures, Governing Labor and Employment Laws

Canada’s governing body consists of a federal governing body that oversees provincial Labor relations boards that have final jurisdiction over labor and collective bargaining matters. However in the case of Canada the Federal government supersedes the local governing boards in industries that are considered of national importance. For example, the federal government would retain jurisdiction rights in the case of the Airline, Power Generation or Trucking industries. These local entities act independently from one another as they hold a provincial jurisdiction applying provincial law. They are not required to use precedent decisions either from other provincial labor boards or from federal decisions. With regards to individual employment rights and Discrimination issues Canada applies the Canadian Labor Code as well as provincial employment laws.

It would be wise to note that Canadian Employment and Labor laws are continuously moving closer to U.S employment and Labor regulations in that there is an active attempt to deregulate (The Global Workplace, 158-173). It would also be wise to note that Canada applies both statutory code and common law in that precedence is recognized on the local level as well as the application of constitutional law on both the local and federal levels. This contrasts Mexico’s system considerably in that Mexico only applies statutory or constitutional code with regards to its employment and Labor laws and with no consideration for precedent decisions in totality.

To illustrate: two separate CABS may receive two similar cases within a period of days, months or years and either opinion would not take into consideration the other court’s ruling on the others similar case. Essentially, It would have no significance.

However, a similarity does exist between Canada and Mexico in their governing bodies in that Mexico assigns a Conciliation and Arbitration Board (CAB) that are similar in operation to the provincial labor boards to rule on labor and employment issues. The CABS, unlike provincial labor boards in Canada, apply statutory laws and have legal jurisdiction over both labor and individual employment disputes. Where in Canada the labor boards have jurisdiction only with regards to Labor disputes, and the local courts manage individual employment disputes. The CABS rule on these issues locally and provincially applying constitutional laws.

The CABs system seems to simplify the process for Mexican workers in that it assigns a single entity to rule on both labor and employment matters and allows for legal experts (CAB members) to specialize in labor and employment laws in general, but it is my personal opinion that this does not allow for the creation of functional legal experts on particular subjects. We see this also in the Canadian and U.S systems when individual employment disputes are argued before ‘generalist’ courts with no particularly strong knowledge or understanding of employment laws. This is one issue where the United Kingdom (UK) differs from both Canada and improves on the Mexican CABs system.

UK governing bodies apply statutory laws and do take into consideration precedent cases. However, contrary to Mexico, Canada and even the U.S, an advantage exists to allow for higher quality rulings in that the UK does this through Employment Tribunals (ET) that command jurisdiction over employment disputes (where the claimant wishes to seek damages of roughly less than £56,000).

This feature is an advantage on the premise that more knowledgeable judges make better decisions within their field of expertise. Allowing those judges to specialize in a particular area of litigation allows for the pooling of experience and knowledge within their specialty. In addition to this ‘pooling of knowledge’ the judges are chosen from an elite bank of legal specialists in that particular field. In other words, judges are already specialists in employment and labor issues and they are ruling on cases within their specialty, with the needed amount of training, education and experience. Both Canada and Mexico do not incorporate this merit system in choosing their board members and there is no evidence, in terms of systems, processes or laws, (to our knowledge) that promote for legal specialists to judge cases within their field of expertise in those countries.

Plaintiffs always have the right to take their disputes to Civil Court if they seek higher damages than the £56,000 mentioned above but cost of litigation would then apply.

At this time one must consider the fact that in a global economy there is usually outside (the nations in question) influence that is exercised by transnational governing bodies. What may these bodies be and what relevant influence exists for these nations and for our purposes?

A brief discussion of these ‘outside’ entities that are pertinent to this discussion and to these nations is now very important, as outside bodies of politics and government have some influence on local structures and legal issues.

In the case of all three nations one must look to relevant conventions of the International Labor Organization (ILO). For the UK, we should briefly investigate the impact of EU membership and for Canada and Mexico a consideration must be looked upon for their current North American Free Trade Agreement (NAFTA) membership.

To cover the scope of relevant issues with regards to relevant ILO conventions we will discuss the ratification of convention 87 and 98 respectively. Convention 87 is titled Freedom of Association and the Protection of the Right to Organize and it creates unlimited protection to freely create and manage independent organizations to represent workers and professionals. Convention 98 is titled Right to Organize and Collective Bargaining and it furthers the rights of convention 87.  Although a detailed discussion of c87 and c98 is not necessary at this time it is worth noting that blanket coverage for the protection of collective bargaining and unionization is what these two conventions result in.

Once a nation ratifies an ILO convention (through their internal political bodies) then it becomes a binding international treaty enforceable by the United Nations (UN) which is the parent organization of the ILO and the ILO itself. For comparison, the U.S has not ratified either convention. Summarizing the countries in question:

C87 was ratified by:

  • Canada
  • Mexico
  • UK

C98 was ratified by

  • UK

Briefly what we can say about this is that the UK, Mexico and Canada has adopted these global treatises and would have and currently have direct applications to its laws with regards to worker’s ability to freely organize. While it would be genuinely interesting to discuss the ramifications in details it would redundant to our scope as we will engage in a detailed discussion of the relevant laws pertinent to our questions.

There are similarities between the application of EU membership to UK employment and labor laws and the application of NAFTA to Mexican and Canadian Labor and Employment laws. These similarities exist in the form of self-determination. I use the words self-determination to mean: The sovereign right to create, modify and eliminate laws by each nations’ government without interference from other members of the union or treaty. Essentially, national laws always take prevalence over any rules, laws and regulations created by these agreements.  From that we can plainly see that any further discussion of these two entities would be redundant to the goals of this article, as local laws always ‘win’.

Unfair Dismissal and Anti-Discrimination

I include these two issues under the same category because they are inherently intertwined. Unfair dismissal could be a form of discrimination and discrimination can cause unfair dismissal (This could be a paradoxical statement).

Each of the nations in questions has adopted laws prohibiting employers from discriminating on several bases. For illustration, let us call any group that is protected from discrimination, Protected Groups or PGs.  Common PGs for the three nations include Race, Religion, Sex, Age, Pregnancy and Disability. Although UK law does not contain a single discrimination Act that covers most if not all of the PGs, it does have several legislative acts that cover the gamut of PG protection. For example, the Race Relations Act of 1976, Disability Discrimination Act of 1995, Employment Equality Regulations of 2006 and generally the Employment Rights Act (ERA) of 1996.

While on the other hand Canadian laws guarantees protection for more categories and each individual province can create protection for even more PGs. For example, Canadian Employment Law can offer protection based on political affiliation which is not seen under UK laws (or Mexican).

For the most part however, other than what we might consider the ‘standard’ protected groups (Race, Color, Religion, Sex and Age) provincial laws takes a large role to protect its relevant PGs. Mexico, in this context seems to be similar to the UK and different from both the U.S and Canada. Mexico provides these similar protections from the federal level in its constitutional/federal labor laws and no ‘added’ laws exist depending on Province or State. Where the UK may have some small difference between regional labor laws (Wales and England may differ on some issues for example) its discrimination laws can be considered as standardized statutory legislation.

For the case of unfair dismissal the three nations take different approaches. Some of the processes have already been discussed in the previous section but we will make some additions to that content here.  Mexican Law and UK law require that the employer and employee enter into a legal contract while Mexican laws stipulate that it is ‘for life’. UK laws do not make that assumption but both nations require that a reason be given for the dismissal of an employee. In other words, they do not adopt the Employment at Will concept of the U.S. Canadian laws although moving closer to the EAW concepts of the United States.

A similarity within the three nations is that they all require a notice to be given in the event of a dismissal.  In the United kingdom that notice is determined by statutory law (ERA of 1996) and is dependent on the length of service of the employee within the organization ranging from 1 week to 12 weeks. Mexican and Canadian systems do not require a notice based on length of service but do require a notice ranging from 2 weeks to 1 month depending on provincial common laws in Canada and reasonable cause in Mexico.

As mentioned above, disputes are handled through the CABs in Mexico, the Labor relation boards or Civil Court in Canada and the Employment Tribunals or Civil Courts in the UK.

Redundancy

Redundancy is a concept that directly applies to UK law under ERA of 1996 and it is simply a concept that allows for the dismissal of individuals because of closing of business unit or a business, eliminating a position or job function or to move the function to another position. Mexico and Canada do not have comparable concept.

The drafting of policies should be done with high consideration to local and federal (or equivalent) level laws.  Two similar policies in the same nation can have drastically different results if care if not taken to understand and analyze local laws. Policies must take into effect contractual obligations.

About The Author
Joseph A.E. Shaheen
Computational Social Scientist. Former Consultant. I fought ISIS/ISIL/Daesh in my own way. Livin' life in Washington, DC

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