 On behalf of the Schulitz School of Law and Dalhousie University, I'd like to welcome everyone to their Ines Christi lecture in symposium and labor and law. Before we move on to our distinguished speaker, I'd just like to say a few words about the man of this symposium honors. Professor Ines Christi was one of Canada's most respected arbitrators, teachers, and scholars in the area of labor and employment law. Ines was born and raised in Nova Scotia. He studied political science and then law at Dalhousie and received a master of law degree from Yale. He began his academic career at Queens but returned to Dalhousie in 1971, where he stayed until his retirement. Ines was also dean of the law school from 1980 to 1991 when he led the school through the crisis of the catastrophic fire and the rebuilding of the Sir James John Law Library. Professor Christi was active in law reform. He wrote for the Woods Task Force on Labor Relations in Canada in 1967. He was instrumental in drafting the Nova Scotia Trade Union Act and the Labor Standards Code in Nova Scotia in 1972. His text, Employment Law in Canada, remains the leading text in the employment law field. Professor Christi's contributions to labor and employment law are far too numerous to list, but they include being a member of the Canadian Anti-Inflation Appeal Tribunal, chairing the Nova Scotia Labor Relations Board, deputy minister of labor, and chair of the Workers' Compensation Board. He was also a leading labor arbitrator and was called upon to lead arbitrations in a wide range of sectors. In 2008, Ines was honored with the University of Toronto for Alaskan Award for outstanding contributions to labor law in Canada, and that same year he received the Nova Scotia Barrister Society Distinguished Service Award. Personally, I remember in this as the dean of the law school when I was a student leading us through that difficult post-fire period, and then as a kind support colleague who was then a junior faculty member. Today's lecture in this weekend's symposium honors Ines for his dedication to the law school and his contributions to the labor law field. Thank you for coming and I hope you have an insightful and enjoyable symposium. Michael, that was great. We're glad that you were able to be here and be with us and say some important things about Ines. That was great. Now, it's my pleasure to call upon my good friend and former colleague, Brian Langell, to introduce our speaker. Brian is one of the people who was a prime mover in getting the ball rolling to have this symposium funded by a group of labor people from across the country. And Brian also, as most of you would know or many of you would know, taught labor law here and was a colleague with Ines. We also studied in Ines's classes together. And so it's a great pleasure for me to ask Brian to introduce our speaker and you'll understand why Brian wants to do this and why I want him to. So, thanks, Brian. Thank you, Bruce. Thanks, associate dean, to do a bit. Distinguished guests, members of the law faculty, law students, labor lawyers. I have been given a very distinct honor and privilege in introducing this year's Ines Christy lecture, Professor Mark Friedland of the University of Oxford. This is both a professional and personal moment, deep meaning for me. Let me explain the personal side of this moment. As many of you know, and as I had a chance to say last year, hi, and as Bruce just mentioned, Ines taught labor law here at Dow. And he is the reason I became a labor lawyer and he is the reason I became an academic. He had a powerful influence on my life, something for which I will always be very, very thankful. I know that I share that debt with many, some of whom are in this room. And while the bank of Ines has many debtors, I feel that I am a very lucky one standing here who gets to acknowledge and remind us all of the real extent of the line of personal and intellectual credit that he extended to so many. But the personal meaning of this moment for me does not end there. Ines supported me and many others at every turn and one of the earliest of turns was when I left Dow to pursue graduate studies in law. Ines wrote letters of reference for me and he supported by many applications for financial support. In the end, I did not follow Ines to Cambridge but ended up at Oxford instead. And who was there to introduce me to the radically different and by that I mean completely strange world of English labor law, none other than this year's lecturer, Professor Mark Frieden. I was a student in Oxford's graduate seminar on labor law a lot of those many years ago which he offered with his long time academic collaborator, Professor Paul Davies. It was a remarkably wonderful experience, a true introduction to English and for me to comparative labor law. But while the world of labor law I encountered in England was radically new, the sort of person teaching it was completely familiar. Extremely smart, decent, passionate, in an English sort of way. Humorous, again in a very English sort of way. Intellectually honest, hardworking and demanding a lot of himself and thus of his students. Innocent Mark for all of their differences came into my life as parts of a wonderful continuum. I went from the very best of Canadian to the very best of British. Innocent Mark were cut from the same durable cloth. This is perhaps not so surprising. Innocent Mark do share a lot in common, both graduated from law school, Ines here at Dow and Mark from UCL, University College London in the mid-60s. They both set off to do graduate work in labor law with the best in the field. Innocent to Cambridge to work with Ken, later Lord Wettever. Mark went to Oxford to work with Ottawa later through Ottawa Confront. These are two of the greatest names in labor law. Their influence was great and it shows not only in their work but in their students. Both Innocent Mark stayed in the academic courts and both ended up redefining the very field they sought to join and understand. This parallel in their intellectual trajectories is something I think that Mark will remark upon in his lecture today. They saw in systematic fields almost simultaneously and on two sides of the Atlantic, what we now call employment law. While they worked within their own legal systems they knew of but did not really know each other well. But Ines thought the world of Marksburg and said so. In the first edition of Ines's text, employment law in Canada, published in 1980. He refers often to what he describes at page 13 as Friedland's masterful study. As usual, Ines was right. Our lecturer this year is a master. As I mentioned, Mark Friedland obtained his law degree with first class honors from UCL in 1966 and his doctorate from Oxford in 1970. St. John's College in Oxford is not only one of the most beautiful of Oxford colleges, it is one of the most academically rigorous. That is where Mark has made his home in Oxford ever since. In 1996, he became professor of employment law in the University of Oxford. He has been much and justly honored. Among other significant indicators of a life well lived in academic law. We can note that he is a fellow of the British Academy. He is a venture of Grey's Inn. He holds an honorary doctor from the University of Paris and he has held many significant positions in Oxford's law faculty within St. John's College and within the University. But the reason he is here today is that he is England's and Europe's leading theoretician of employment law. He has written a lot, including many books. Of the many, three stand out for our purposes. Is 1976 the contract of employment to which Ines paid tribute in 1980. Is 2003 the personal employment contract and his most recent book. Co-authored with his former student, Nicola Contoras, who is now at UCL, the 2011 the legal construction of personal work relations. Now what is really remarkable about these books is that while in 1976, Mark first theorized the field for England. He also realized over his career that he had to continually reinvent it to reflect the world as he saw it changing. While remaining true to, rather in order to remain true to his unemployment laws, fundamental values. Mark Freeland is widely incorrectly recognized as one of the world's best labor law lines. In the Oxford, Cambridge monthly triangle, which contains the highest concentration of first grade labor law scholars in the world, he is an acknowledged leader. In his preface to the first edition of employment law in Canada, in a single doubt, after the user of the usual acknowledgments to all his research assistants and funding sources. And just before singing out in the final paragraph, because wife John, for special, special thanks, he singled out three men in his rote as follows. I quote, I will take also this opportunity to thank two men I have never met and one of my own writing only slightly some years ago. I owe a considerable debt to the authors of Hepple and O'Higgins, two other very distinct labor worsening unemployment law, and to M.R. Freeland, the author of the contract of employment for his acute analysis of the contractual elements of the contract of employment, which are common to the law of England and Canada. Mark is the man in this new only slightly some years ago. The only reading to each other in the world of print, in the world of ideas, and in the world of academic toil. That is a noble way to really meet, to really come to know, and to really admire someone. It is also a remarkable tribute to both men, to this connection, so important to both Canada's and England's law of work, continues today in the form of this lecture. It is really a very personal and professional honor to welcome Mark to Canada and to Dalhousie and to ask him now to deliver the third annual Inscristy Lecture in Labor and Employment Law. Have I got this correctly set up, this microphone? Okay. Thank you. Pour some water. Well, it's very incautious on the part of an invited lecturer to begin by departing from his script. And I do say at some risk, but I cannot but say what a very moving introduction that was. And I'm enormously gratified by it. It immediately, in a way that I dimly perceive, but immediately becomes more concrete, personalizes the whole exchange for me. And I'm most grateful for that. And I'd also like to say how very long-term and stimulating and enjoyable my exchanges with Brian have been, both at an academic and equally as he says, at a personal level. And more generally, my wife and I have had the most cordial possible of welcomes to Nova Scotia and to Halifax and Dalhousie. And we are most grateful equally to Bruce and Joan for that. So returning to my text, if I may, and therefore on, I hope, more secure ground. It's a great honor to have been invited to lecture in the oldest law school in Canada and one of the foremost in the Commonwealth. And to have been invited to do so in honor of Ines Christie, such a key figure in the development of labor and employment law in Canada. And to have been so invited by Bruce Archibald in succession to Harry Arthur's and Brian Langeal as the first two Ines Christie lecturers, all these being themselves, key figures in that development. I didn't have the good fortune to get to know Ines Christie well personally, though as Brian has recorded, we had met and I was well aware of his work. Harry Arthur's lecture, which he sent me quite soon after he delivered it, and discussions with Brian Langeal have been invaluable in making me feel clearer in my recollections of Ines and more conversant with the significance of his work. Spending a few days here, soaking up the atmosphere and talking to Bruce and others about Ines has clarified my picture of him as a large and commanding personality, as at home in the world of labor law and politics, as on the deck of a yacht. The latter being a near universal attribute in these parts, as far as I can tell. The purpose of my lecture is to think about Ines as the architect or pathfinder of employment law as distinct from labor law in Canada, and to revisit that distinction between labor law and employment law from a British and European perspective. The main purpose of my lecture will in fact be twofold. Firstly, I want to suggest that although there is nothing in the development of British or I think European legal scholarship, which exactly corresponds to Ines Christie's development of Canadian employment law, there have been very close parallels between that work on his part and the work which I and others have done in Britain and Europe more generally to develop the exposition of the law of the contract of employment in particular and of the law of the personal work relationship more generally. Secondly, having tried to establish that parallel, I shall then engage in a kind of normative stock taking of the gains and losses from this work which I have tried to do in the British and European legal context, hoping that it may have some implications for the future legacy, for the future evolution of the legacy of employment law which Ines Christie left to Canada. This normative stock taking will eventually try to home in on the relation between the collective and the individual aspects of labor or employment law. So I begin by revisiting the distinction between labor law and employment law as a matter both of concept and of terminology. In this connection, the main point I want to make from the outset is that, although we find the same duality of terminology between labor law and employment law in Britain as we do in North America, the relationship between those two terminologies in British law certainly at one time was and I think still is very different from the relationship between the two terminologies in the laws of Canada or the or of the United States. And this difference betokens some underlying conceptual or structural differences between those legal systems. It is a classic instance of terminological false friends even of as the old joke has it, countries divided by a common language. The point here is this, if we take the mid to late 1960s as our chronological starting point, the time when the academic or legal subject which we share was taking shape and taking off and when Innis Christi and I were coming into that discipline as novices, the structure and terminology of the law concerning collective and individual labor or employment relations was quite a lot more hard-edged in Canada than in Britain. In Canada, the was as I understand it, quite a highly legally regulated and structured regime for labor relations and collective bargaining which applied to the unionized sector of the labor market rather along the lines of the National Labor Relations Board Wagner and Taft Hartley acts system in the United States. This was a heritage from wartime federal legislation subsequently refashioned by legislation in each province. That legal regime formed and was known as labor law and was the subject of quite well-developed theoretical and practical exposition. And outside that sector and that regime there was an absence of structured or focused legal regulation of employment relations, a legally hardly charted territory in which the prevailing legal norms were those of the common law characterized by a scarcely questioned stereotype coming fairly close to that of the contract at will which was undoubtedly the dominant paradigm in the United States. In Britain at that time, against the background of a very vigorous system of voluntary collective bargaining, there was a very much less highly regulated and structured legal regime for collective labor relations or industrial relations as they were then styled. And the body of legal regulation of individual employment relations also primarily governed by the norms of the common law of the contract of master and servant, but upon which was gradually being superimposed from 1963 onwards, a flaw of statutory protections for employees enforceable in a new body of embryonic labor courts known as industrial tribunals. This body of law did not formally differentiate between a unionized and a non-unionized sector, though obviously its practical outcomes for workers differed greatly as between those two sectors. The body of law in question had been known variously as industrial law or the law of master and servant. As the academic study and textbook exposition of that body of law gathered pace through the 1960s, it did so increasingly under the title of labor law. This was very much under the influence of the undoubted Douayin of the subject Otto Kahnfreund, for whom I think the terminology of labor law was quite simply his preferred translation into English of the discipline of Arbeitzrecht, which he had acquired in the Germany of the Weimar Republic. The terminology of labor law would increasingly be preferred to that of industrial law. And of course to the decreasingly acceptable notion of the law of master and servant, so that although the principle subject journal for labor law studies in the UK is still styled the industrial law journal, that is now little more than a cherished archaism of the kind so beloved of the British despite ourselves. It's also worth adding at that point in view of Brian's entirely justified reference to Bill Wetterburn as the other grand and founding master of British labor law whose passing, recent passing we've been memorializing in recent months that I see Bill Wetterburn as having crucially picked up on Otto Kahnfreund's deployment of the terminology of labor law in the 1960s at the moment when it was Bill Wetterburn and others who were really launching the subject under the title of labor law in Cambridge and then shortly afterwards in London. It took quite a long time after that for Paul Davis and myself building on Otto Kahnfreund's legacy to get the subject admitted onto the undergraduate syllabus in Oxford for reasons which you'll probably quite readily be able to appreciate. So by the late 1960s, the terminology of labor law prevailed both in Canada and in Britain but it referred to differently structured legal regimes with different spheres of application. Here comes the very interesting twist in the story where the idea and terminology of employment law comes onto the scene in both systems but does so in rather different ways each way being contingent or path dependent upon its own existing national context. In both systems there was at and from that time an increasing impulse to enhance and rationalize the legal protection of individual workers at the level both of practical lawmaking and theoretical exposition. The activity at those two levels being essentially mutually complementary. This was an activity of trying to chart and develop the worker protective potential of the law of the contract of employment and where that was lacking or deficient which was in large measure the case to build a statutory superstructure of employment rights and employment equality law upon those often shaky foundations. This was the essential intellectual and practical activity in which Innis Christie was undoubtedly engaged in Canada and in which I like to think that I was engaged in Britain. He engaged in that work under the banner of employment law. I like to think that I did so in a loosely parallel way under that of the law of the contract of employment. And Brian has indeed drawn attention to passages in which Innis Christie himself very generously makes those connections in a way which is, as I've said, so significant for me to be reminded of. So this is a bold and I hope not too presumptuous a claim on my part that Innis and I were working on parallel tracks and most of the rest of my lecture will be devoted to a consideration of where those parallel tracks have led and might be leading to. But let me first try to conclude and close off the story about employment law at the terminological level. I should say the two stories for they are significantly, they're not completely different ones between the two legal systems. In Canada, as I perhaps imperfectly understand it, the pursuit which I've identified as that of charting and developing the worker protective potential of the law of the contract of employment and the building of a statutory superstructure of employment rights and employment equality law upon those foundations was fairly and squarely conceived of under the heading of employment law. At the outset certainly and for some time after that and perhaps even to this day, employment law represented and represents a distinctive pursuit from that of collective labor law still basically applying to a distinct cohort of workers. That is to say those in the increasingly large non unionized sector. That said, arguments have for a long time been advanced in favor of a conceptual and operational fusion of labor law and employment law as famously with Brian Langell's claim that labor law is a subset of employment law. But as I understand it, no such complete fusion has hitherto occurred. For example, I noticed in the academic calendar for the current year in this law school that there are two separate courses one in labor law and one in employment law which exactly reflect the dichotomy which I have described. The evolution of terminology and disciplinary or pedagogical structure has been a rather different one in the UK. It is true that in the course of the 1970s in particular there were signs that individual employment law or employment law to cure might be emerging as a distinct pursuit from that of labor law with much the same prospectus as that which I have identified for Canadian employment law. Professors Hepple and O'Higgins to whom Brian so aptly referred in his introduction wrote a text in 1979 under the title of individual employment law called Simply Employment Law in Subsequent Editions which was for some time the standard bearer for distinctively individual employment law courses. But I would contend that the separation between the two was never anything like as complete as it was in Canada either in terms of legal subject matter or in terms of a sectoral division between the unionized and non-unionized workforces. And moreover, I think that even this degree of disjunction between labor law and employment law has largely faded away so that the two terminologies have become virtually if not completely synonymous both being names for a single legal subject or discipline embracing both collective and individual employment relations. If one chooses the name labor law there is still a slight implication that the implication that the emphasis might be on the collective aspects with the opposite individual emphasis for employment law. And you can still in the British way feel slightly different vibrations of social meaning in the unspoken allusion to blue collar workers, laborers as the clients of labor law and white collar workers, employees as the clients of employment law. But like the Cheshire Cat, this distinction is fast evaporating leaving only a grin behind. I would say we have reached the point where either terminology can be used to translate the unified terminologies of many European legal systems in French, in German, in Dutch, in Spanish, in Italian, in Portuguese, in the various Scandinavian languages. All this is not to say, however, that we cannot discern in the labor or employment law systems of the UK and other European countries a distinct pursuit of the kind which I identified earlier. And it still makes sense in those legal systems to identify it as the pursuit of individual employment law. As I said earlier, it is that pursuit which I think is essentially followed in his work on employment law and it is the pursuit which I've tried to follow in my work on the contract of employment. And it is of the results of that pursuit that I shall try to offer a stock taking in the remainder of this lecture, which we've focused mainly on British law because I do not presume to do more than to suggest general and qualified analogies with Canadian law. So as I've trailed it earlier in this lecture, the stock taking which I'm now undertaking consists of assuming that Innis and I and other proponents of employment law, Canadian style or of individual employment law have been engaged in a certain normative pursuit and of asking whether that pursuit has been successful or beneficial in its outcomes. This is therefore a kind of cost-benefit analysis in a broad sense. The normative pursuit to remind you again if I may has been identified as that of charting and developing the work of protective potential of the law of the contract of employment and the building of a statutory superstructure of employment rights and employment equality law upon those foundations. So success or benefit will be measured according to an ideal of worker protection, which we can think of as being aligned with the traditionally foundational notion for labor law of redressing the imbalance of power which is inherent in the individually bargained contract of employment. This normative identification is not uncontroversial, of course, but I make it anyway and this is one of the aspects of this lecture which I look forward particularly to discussing with you later today and tomorrow. I will use the notion of individual employment law and the acronym IEL as a convenient, albeit for the reasons I have given controversial shorthand to identify this common pursuit which we are evaluating. I will refer primarily to IEL in the UK, secondarily to IEL in Canada and occasionally to IEL in Europe at large. Let me begin with an optimistic assertion of the benefits or positive achievements of IEL. I think it has served over the years of its evolution from the late 1960s and 1970s to provide an indispensable technical and structural apparatus for a whole aspect or dimension of the legal regulation of labor and or employment relations. In that sense, labor law simply could not have managed without IEL and has been the richer for its development. I would even go so far as to say that IEL has had some success in developing in particular the worker protective potential of the law of the contract of employment. That being at the heart of the normative claim which I make for IEL, the normative mission which I hope not too idealistically, I attribute to its proponents such as Ines Christia and myself. I think that success such as it is has consisted primarily in moves to characterize the contract of employment as embodying a continuing obligation of mutual trust and confidence between employer and employee which conditions both the shape and the conduct and the termination of the employment relationship and further moves to ensure that a statutory floor of rights complements and supports that essential characterization. We can and should debate whether and how far that goal has been achieved. The UK courts seem to be developing exactly such a purposive approach to IEL. That development reached its high watermark in the case of Malik and BCCI before the House of Lords in 1996. That case concerned the liquidation of the bank of credit and commerce international in the mid 1990s. A bank which had collapsed amidst a storm of allegations of reckless and corrupt management and over speculative investment practice. Now a frequent occurrence but in those slightly happier times a rare one. The liquidation proceedings automatically terminated the employment contracts. Mr. Malik, a branch manager put in a contractual claim that the conduct of the senior managers of the bank had so blighted his personal reputation as a lower level manager as fatally to damage his prospects of re-employment. The House of Lords famously and very innovatively held that the claim succeeded by reason of an implied obligation of mutual trust and confidence. But there was a major setback in 2003 in the case of Johnstone and Unisys Limited where the implied obligation of mutual trust and confidence was limited in its application so that it did not govern the termination of the employment contract. In particular, so that it did not enlarge the employer's liability and damages for wrongful termination. This is a case where an employee and director of Unisys the major computer software company had been dismissed following psychiatric illness attributable to stress at work. He invoked the obligation of mutual trust and confidence to seek damages at large for the summary manner of his dismissal. Again invoking Malik to challenge the old rule against reputation or distress damages for wrongful dismissal which rule had been firmly made by the House of Lords in the early case of Addison the Gramophone Company in 1909. The House of Lords powerfully and very controversially reasserted the rule in Addison the Gramophone Company thereby very significantly constraining and limiting the scope of the implied obligation of mutual trust and confidence. As I understand it, there's been a somewhat parallel evolution in Canada from Wallace and United Grain Growers in 1997 to Honda Canada and Keys in 2008 before your Supreme Court. And I shall say more in a moment about the question of how far there has been and is a purposive judicial approach to the positive development of IEL according to that normative goal which I have assigned to it. But even if one thinks that at least the vestiges of such an approach do remain, I want to acknowledge and to dwell upon some of the costs or inherent problems which attached to the whole development of IEL and its increasing presence as a dominant, even in some ways as the dominant aspect or dimension of labor and or employment law. There are, I think, a series of such costs or inherent problems attaching to the development of IEL and they can, I think, be traced back to an original tension. Some might say even an original contradiction in the whole aspiration of constructing a basically worker protective body of law in the context of the British common law-based tradition which we share on the foundations of the individual contract of employment. There are many such problems. I've touched on one of them as embodied in the Malik, Johnstone and Unisys and Wallace and Honda and Keyes case law, but I shall concentrate on two such costs or problems which I shall identify as firstly, that of labor market elitism and exclusion and secondly, that of individualism and de-collectivization. The problem of labor market elitism and exclusion consists in the propensity of IEL to become a body of law which caters increasingly for a wealthy elite of employees and fails to fulfill a protective function of vulnerable or disadvantaged workers. An ironical reversal of the original situation in Canada which Brian Langeel could identify in which Brian could identify a sector of the workforce who were the have-nots of labor law whose needs IEL was designed to address. There are several causes for this reversal but two in particular stand out. The first cause of labor market elitism consists in a set of access to justice issues which loom increasingly large in the field of IEL. In particular, litigation to enforce contracts of employment has become so prohibitively expensive and hazardous that it has become or has reverted to being largely the province of senior managers and employed entrepreneurs. A situation vividly identified by cases such as Keen and Commerce Bank and Gaze and Société Générale, the former in the Court of Appeal and the latter currently making its way to the Supreme Court. Keen and Commerce Bank concerned the manager of a trading desk at Commerce Bank, the major European German originating bank. A claim based on the obligation of mutual trust and confidence, the practical purpose of which was to claim fair exercise of the managerial discretion about the size and distribution of the bonus pool between the group of managers of trading desks at the bank. For that exercise of discretion, over three successive years, the sum of about four million euros was at stake. In Gaze and Société Générale, this concerned the managing director, employed managing director of an industrial, sorry, an investment division of Société Générale. The claim related to termination payments and the dispute was whether his employment had terminated at the end of November 2007, as the employers claimed, or the end of February 2008, as he claimed, and upon that distinction, the sum of two and a half million euros turned. And one does slightly begin to wonder when analyzing and commenting on such cases, whether this was what one came into individual employment law to do. The other principle cause of labor market elitism and exclusion, which is a major problem in British law and practice, consists in the exclusionary operation of the category of the contract of employment as the precondition for the enjoyment of many statutory employment rights. This now has a huge exclusionary effect by reason of the requirement in British law of continuing mutual obligation, which excludes many casual workers, coupled with the tolerance of the reconstituting, of an increasing proportion of employment relations as relations of self-employment, and also the tolerance by the courts of the triangulation of employment relations by the insertion of an intermediary subcontractor or employment agency to preclude the existence of a contract of employment with the actual end user of a worker's services, the real employer in common parlance. So we see these different kinds of exclusion going on in some key cases. The exclusion by reason of the lack of a continuing mutual obligation reached its high watermark in the case before the House of Lords of Carmichael and National Power in 1999, which concerned a group of women workers for national power whose role was to, they were tour guides whose role was to take people on tours around power stations as and when required by national power to do so. And the ruling essentially was these were therefore on call or even zero hours workers. And the ruling was that despite a goodly number of years of continuing actual employment, actual and reasonably steady employment on this basis, they had nevertheless not become employees with continuing contracts of employment because there was not a sufficient degree of continuing mutual obligation. And it's been very painful for me to see in this the complete reversal of an argument which I'd sought to develop in my original treatise on the contract of employment, which was to the effect that the de facto, the factual existence of an employment relationship over a period of time should firmly imply the existence of continuing mutual obligation as a matter of legal analysis. And this has been completely reversed into a doctrine that the existence of such a continuing mutual obligation has to be found as a precondition for the enjoyment of employment rights. And is to be judged on a cautious and parsimonious basis. That has a highly significant real-world exclusionary effect from statutory employment rights for the growing army of casual workers. So also does the employment rights repackaging of employment relations by employers as relations of self-employment and its tolerance at least until quite recently by the courts as being effective to shut workers out of statutory employment rights dependent on the existence of a contract of employment. That perhaps reached its high watermark quite early in the 1980s in, for example, Youngland and Woods and West, where it was held that a craftsman sheet metal worker had really been given a real choice from the outset whether to be an employed worker or a self-employed worker and his choice to be a self-employed worker and therefore not to accumulate any employment rights was accepted as having been a genuine one despite the fact that he'd worked as a manual worker under the real effective control and direction of an employer. And finally, you get the exclusionary effect from the triangulation of employment, the interposition of intermediary employment agencies, and the tolerance of that by the courts was shutting out a contract of employment between the real end user and the worker. That development being very much confirmed by the Court of Appeal in the case of James and Greenwich local authority where a housing support worker who'd been employed but via employment agencies by the local authority from 2001 to 2004 was nevertheless held to have acquired no implied contract of employment with her real employer, the local authority, throughout that period. And the court there articulated a doctrine that the implied contract between the end user of the services and the worker would be held to rise only when it was strictly necessary to find such a contract. This being virtually never as far as I can see. There has recently been in the decision of the Supreme Court in Auto Cleanse and Belcher, a more corrective approach from the Supreme Court whereby instead of intervening only where the purported self-employment contract can be shown to be a sham in legal terms, the court or tribunal is to look more open-mindedly at the true nature of the relationship, bearing in mind that the contract of employment is a special kind of contractual relationship where there is likely to be inequality of bargaining power between the parties. That is a very real advance and this is good for tackling the false classification problem, the first of the three which I referred to. However, I very much fear that it will not work for the mutual obligation problem or the triangulation problem. So we still have, even after Auto Cleanse and Belcher, welcome though it is, a major exclusionary effect built into the way that the law of the contract of employment is operating. I find myself asking wherein is Christie would stand in relation to this set of developments? I've tried to deal with them by campaigning at a theoretical level for a more all embracing and inclusionary approach within a broader category, which I've designated as that of personal work relations. But I find myself even more strongly wanting to know where he would now be standing in relation to my second major concern about the costs or problems of IEL, namely that of its propensity to be conducive to individualism and de-collectivization in labor or employment law. I will develop the theme in the context of British law, but we'll conclude with a side long glance at what I perceive to be a quite closely analogous set of issues in Canadian law. My point here is that I believe that the theory and practice of IEL by focusing itself upon the individual employment relation and even more particularly upon the individual employment relation as embodied in the contract of employment inherently encourages a mindset in which the employment relation is viewed with an individualistic and contractualist disposition. The analysis and regulation of the individual contractual employment relation does not necessarily have to be individualistic or contractualist, but it quite readily becomes so, especially in the hands of the common law appellate courts, which seem quite strongly predisposed to such an approach. In particular, this can lead to the marginalization and downgrading of the legal protection and support of collective bargaining. We can see this kind of marginalization going on at various different levels. A relatively unobserved, though quite significant manifestation of the trend, consists in the fact that the exclusionary effect of the narrow scope accorded to the contract of employment may bear just as hard on rights to trade union membership and activity as upon the more straightforwardly individual employment rights. We can see this happening in the British Court of Appeal in the very interesting case of consistent limited and CalWAC. Consistent limited was an employment agency providing Polish workers as meat packers to Welsh country foods limited, a food processing factory. The workers were classified in their engagement as self-employed and lived in groups in poor housing provided by the agency and worked in very harsh conditions. They were trying to unionize with the Transport and General Workers Union. They were heavily discouraged and felt pressured both by Welsh country foods and by consistent into giving notice and were then summarily dismissed. The workers were claiming in this action to be employed under contracts of employment in order to assert their freedom of association rights, but their claim was rejected on the usual kind of narrow approach to the scope of the contract of employment on that basis as I've sketched it out and most significantly in the Court of Appeal there was no hint of any kind that a more lenient or inclusionary approach should be taken because it was freedom of association rights that the workers were asserting. And although the Supreme Court in auto cleanse suggests the revisiting of the consistent group and Calwack decision, even then they still make no special concession whatsoever to the freedom of association dimension of that case. I think however that we find an even deeper form or manifestation of individualistic and de-collectivizing approaches stemming from the growing prominence of IEL. I think it was a certain IEL mindset which gave rise to the for many British labor law scholars quite notorious decision of the House of Lords in the Wilson and Associated Newspapers, Palmer and Associated British Ports case to the effect that the statutory individual right to trade union membership and activity should be interpreted as not having been violated by the practice of incentivizing workers to move from contracts of employment the terms of which were determined by collective bargaining to so-called individual contracts of employment nominally negotiated with each employee individually, but in reality of course imposed as standard form contracts by the employing enterprise. Infusing the thinking of the House of Lords was not only a very thin conception of the right to trade union membership little more than a right to belong to a friendliest society and enjoy the social attributes of association in that sense, but also a perception of the contractual employment relationship as in any case and is essentially individual one so that there was nothing violatory of the employee's right to freedom of association in paying him a premium, him or her a premium for choosing to conduct that relationship outside the umbrella of the collective bargaining process. I'm deeply convinced that this is the thought pattern which is encouraged by the conceptual separation of IEL from collective labor law. In the British case, a corrective was administered by the European Court of Human Rights to which Wilson and Palmer took a case against the United Kingdom for maintaining a legal regime which tolerated indeed provided for as interpreted that outcome. In Wilson and Palmer and the UK, the European Court of Human Rights famously held that such a regime failed to give effect to the right of freedom of association which was conferred by the European Convention on Human Rights and the UK government had to respond by proposing amending legislation which was enacted by parliament. The danger it seems to me is that in the IEL mindset we come to think that it is more legitimate to regulate employment relationships at the individual level than at the collective level. Indeed to regulate them as individual relationships rather than as in any sense collective ones. So we concern ourselves with individual rights and freedoms and become reluctant to derive collective rights from them. It is a classic English common law, liberal stance and much work was needed originally to establish the autonomy of labor and employment law from it. Here of course I'm becoming provocative in a way which you may have started to anticipate. Although I certainly don't claim to be proficient in the niceties of the debates in and around the now internationally famous Canadian jurisprudence in the Dunmore, BC health and Fraser and Ontario decisions I perceive that something somewhat similar to the doings in the House of Lords in Wilson and Palmer was occurring in the Supreme Court in Fraser where essentially as I understand it the Supreme Court ruled that the Ontario government and legislature could not be constitutionally commanded to legislate for an imposition of collective bargaining on the Wagner Act model on the employers of agricultural workers. I suggest that there is a very strong individualist thrust which is driving the outcome in Fraser. It is I think quite comparable with the individualist drive which produced the outcome in Wilson and Palmer in the House of Lords. It is fully and overtly on display in the judgment of Justice Rothstein especially around about paragraph 184. I think it is almost equally present implicitly in the judgment of the majority although they are careful to be more collectivist in the over reasoning. I hear and accept by the way the view that when Justice Rothstein purports to base his reasoning on Professor Lanjil's views and arguments he actually to some degree distorts them. But the majority and Justice Rothstein do agree upon the outcome and that outcome is a negative one for collective bargaining as distinct from collective consultation albeit a strong form of collective consultation. Now this brings us back to basics. I think there is an inherent risk that thinking about employment relations as individual ones does conduce towards individualistic approaches at least to the extent that it suggests that labor and employment law can be made in the land of individual employment contracting as well as even at times instead of in the land of collective bargaining. My own intellectual mentor Otto Karl Freund supervised my research and writing as I struck out into the land of individual employment contracting. He was always adamant that I must not neglect the land of collective bargaining which for him was undoubtedly the heartland of labor law and employment law too so far as that was ever for him a distinct pursuit. I should really love to know whether how this audience thinks about that and how they think, how you think that Ines Christie would have been likely to regard the phrase of decision and the views about IEL which I'm now putting forward. May I say in a kind of speculative homage to Ines, if you will permit me to do so, that I like to think that he would have agreed with me that the development of IEL does not need to and preferably should not give rise to or encourage this marginalization of the collective interest in the overall framework of labor and or employment law. I conclude there eagerly anticipating the reactions of this learned gathering later today and in our workshop tomorrow. Thank you again for inviting me to give this memorial lecture and listening to my doing so. Can I get any questions for maybe 15 minutes before we go to reception upstairs to continue discussion on an individual basis? I should be happy to. And would you like to take a professorial stance and referee for yourself or do you want me to intervene in a triangular kind of way? I'm wondering which would work better. Shall I do it myself? Thank you. I've bashed in the audience silence. I was thinking as you started to describe a bit of a difference in the separation between employment law and labor law in Canada and the lack of that separation. In England I was gonna ask a question which is sort of where you ended up. And it's always seemed to me in my relatively short period of time in this field that one of the reasons why employment law in Canada was effectively ignored except for a few key players was a sort of political opposition from many members of the academy to the idea of individual employment law. And I was curious as to why there was about initial oppositional stance between the two in England. And I thought perhaps the difference was that there was more robust statutory protection in England than there has been in Canada. And so the employment law model in Canada has remained intellectually anyway centered around the common law. And my second question that was sort of goes on from there is each day. I wondered almost what the effects are on the entire field, both of them really, to the difference between a split field and a fused field as unionization brings raw as subsistence to law. Sure. Well, taking those two questions in turn, the history here is extremely interesting. There was quite a degree of hostility towards the development of individual employment rights and in particular the introduction of unfair dismissal law from the proponents of a label or primarily dedicated to the auxiliary support of a voluntary collective bargaining system. And the turn to individual statutory employment rights was almost as controversial for some of them as it was for the employers, if you like. And I well recall Bill Wedderburn being extremely suspicious initially in very much that kind of way. And even Otto Kahnfreund himself having that set of suspicions. So it was far from uncontroversial. I think what changed everything was the very evident failure of the voluntary collective bargaining system in the later 1960s to deliver the goods in terms of worker protection. For all but a limited section of the workforce. That became very, very obvious and it was that which brought about the shift. So that by the mid 1970s, Labour governments were fully committed to developing labour law in, if you like, strong individual employment law form. But not before years of quite acute controversy. And then as to your second question, well, that was the kind of general assessment and calculus that I was trying to make. Can you point me towards the particular angle on that that you wanted me to concentrate on? And maybe this is exactly sort of where you're at. But in a system where the two areas of large split, if unionization levels drop one area remains effectively unchanged. But in a system where those two areas are more substantively fused, maybe that speaks to your sort of an angle about the individualization being more prominent. Maybe we come out to the same place. That's a very, very interesting way of thinking about it. I mean, you could argue that the that the infusion of individualism from individual employment law is going to be a more pervasive effect in a fused system. And I do acknowledge that I'm talking from that British experience. And you could counter by saying that I'm being over imaginative in transposing that into a still split context. That's the speculation I'm trying to get people to focus on. Yes, Sam. We find this contract of employment law individual employment strange in that, for example, the idea that a collective agreement is enforced from individual contracts of employment that you have to go to courts to enforce. We don't know anything about that because we have collective agreements that have their own enforcement mechanisms and they also have judges that go to arbitrators and it's the thought for us. And also, as it relates to statutory rights that it be tied to this legalistic concept of a contract of employment, we tend to think of it in terms of a statute having a purpose and you apply this purpose of that statute to individuals or to social relationships. We don't tend to stick the contract of employment in the middle. So the whole thing is very strange to us. And it strikes me that perhaps in the English concept that context was I kind of wondering about is that having the judges be the decision makers is a fatal flaw to anything by nature. Doesn't seem to be the judges that are right people to decide if we should find other decision makers who can apply this statutory and collective play the law in a more purposeful way. I find those comments entirely acceptable if I may say so. I think they identify real differences between the systems. Differences which are perhaps eroding so that there's a degree of convergence but which undoubtedly identify very differentiating original features. And as I say, one's got to be very cautious about in any way overriding those fundamental differences in one's analysis. I absolutely agree with you about the whole difficulty of letting the common law courts loose on this whole issue of who should be regarded as workers within the coverage of employment law and employment protection. I was arguing as passionately as I could about the to my mind often very difficult consequences of that. And there is an irony in the way in which for the British courts operating within the British legislative structure there's this particular focus on the contract of employment as opposed to the broader question which you can ask simply as who is an employee in which case you can answer it in far less legalistic terms. And that's a very ironical twist for UK law to have taken. And probably quite a singular one actually. In most other systems you're really simply asking the question who is an employee? You certainly are in North America as I perceive it. And although you may in part answer the question by thinking who has a contract of employment, you're not as closely tied to that as we have become. And that's a very significant difference. And it does cause one anxiety as having focused one's work so much on the contract of employment, not in the least bit desiring that set of outcomes. So it's something I worry about a lot. It surprises me that in a way we come to a circle there in my movement may just introduce a vignette or two of us, that's a letter we're under who my own purpose of studying at the London School of Economics in the middle of the 60s. I remember approaching him and saying that I would like to study labor law. Which he replied, I'm assuming that I would like to teach you labor law, but my colleagues in the law school have decided that there is no subject yet that it can only be resolved as matters by the law of contracts. So it sounds a little bit comfortable to circle here. The other point about what I learned was that he ended up teaching us company law because as you may remember, he was one of the editors of Gauron on company law. And I think that the only triple star at first from Cambridge in the decade or something. But he was not particularly good at names. So he used to call me Ardeen versus Sinema's, which was the case on minority shareholders' rights, where I argued quite a bit in his classes. But could you just describe briefly a little bit about how he made this transition from being Gaur's go-to person in company law to being one of the leads of employment labor law in Britain? Yes, I certainly could. And there are extremely interesting parallels between Bill Wedderburn's evolution in that way and that of Paul Davis to whom Brian referred and my own lifelong, very close colleague, friend and collaborator. I would say that for both of them, and Paul got this from Bill, company law and emerging labor employment law very much complemented each other. And each of them was really keen to develop the two disciplines in parallel and as cross-fertilizing each other. And that seemed to me, as it did to them, a very real possibility in the 1960s and 70s and even 80s and that potential underlay many of the discussions we had about industrial democracy and worker representation in company management through those years. And I'm quite sure that Bill Wedderburn, I know that, Bill remained of that conviction and in that mindset throughout his academic career and his life. What I perceive in more recent years and it's a matter of regret to me, is a divergence in the disciplinary apparatus which labor lawyers on the one hand and company lawyers on the other hand bring to bear. And it's very striking how the study of corporate law is now dominated by law and economics thinking and the company lawyers are very ready to regard the labor lawyers as pie in the sky idealists who don't accept the realities of law and economics and don't live in a real world which they invoke. I'm actually quite pleased and proud to go on doing that as long as there's any breath in my body. I want people to get to have a drink because we're time is marching on. I hope that those of you who are here today and are interested in engaging in basic thinking, my mantra is there's nothing so practical as good theory and I hope that tomorrow's discussion at the symposium we'll see the program on that, we'll get us there and we'll start off with some law and economics and labor economics and try and look at in a certain way the last issue that you raised. In some way we'll start off tomorrow and we'll look at the more focused subjects perhaps, but at any rate, let me thank you Mark for opening my eyes to basics in comparative work. I always think that comparative law when you hear about somebody else's system, it puts your own in a kind of sharp relief that you can see the differences and some of the questions that seem to me to be true and I hope we can continue this discussion tomorrow and learn from one other's perspectives and ways which can be both theoretically pleasing and practically significant. So thank you very much and we have a little gift so that you can take home and remember this event and your connections with Dennis Christie and we'll be able to go upstairs to the atrium and have a great time to go chat with you as well. Thanks a very much. Thank you.