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Corporate governance as a tool for social justice

In order to achieve social justice many lawyers think that they have to work at a legal clinic or a firm that focuses on human rights. While these options are noteworthy and commendable there are various ways to help society bend towards justice. When I was in law school, myself and two other law students got Queen’s Law (Queen’s University Kingston, Ontario) to become a No Sweat campus which means that all items bearing the Queen’s logo are guaranteed to be made under fair working conditions. This early venture into the anti-sweatshop movement fuelled my research agenda. I articled at a union-side labour firm and in-house at a union before being Called to the Ontario Bar in 2007. I used the knowledge I acquired in law school, throughout my LL.M., and my Doctoral studies to help determine how best to convince those with the most power and resources, oftentimes corporations and its employees, to use those same resources to help the less powerful in society.

My research agenda focuses on governance and regulation in the form of codes of conduct. How can corporate codes of conduct be used to help increase the rights of workers? My first book, Regulation and Inequality at Work: Isolation and Inequality Beyond the Regulation of Work, was published in July 2018 and focused on how the gig economy with its promise of flexible work has let workers down by undercutting basic minimum standards. As defined by Sarah Donovan et al., ‘the gig economy is the collection of markets that match providers to consumers on a gig (or job) basis in support of on-demand commerce.’ Platforms such as Uber allow for people who want to hire Uber to use an app on their phone to connect with people who are Uber ‘drivers’ but not Uber employees.

My second book Corporate Law, Codes of Conduct and Workers’ Rights moves from looking at the gig economy and how best to increase worker voice to concentrate more on the code of conduct as a mechanism to help workers harness the power of corporate governance to allow their concerns to become heard in the boardroom and not just wait for the courtroom. If issues can be dealt with at the corporate level before they advance to legal problems then they can be fixed or handled before they become too large. After BCE Inc v 1976 Debentureholders was decided in 2008 there was an increased onus on Directors and Officers of a corporation to ‘consider interests’ of stakeholders and not just focus on making shareholders more wealthy which was a model known as ‘shareholder wealth maximization’ or ‘shareholder primacy model’. This elevated duty, while important, does not rise to the level of fiduciary duty. So, the question becomes what does it mean to ‘consider interests’? How strong is that obligation on Directors and Officers?

As noted by Ed Waitzer & Johnny Jaswal, the Supreme court of Canada has introduced the notion of the ‘good corporate citizen’ in BCE yet that term does not have a legislative definition nor can a definition be found in caselaw. The court seems to be unilaterally introducing the notion of Corporate Social Responsibility (CSR) on to all Canadian corporations. I put forward a Model Code of Conduct that can be implemented by corporations to help them put in place greater protections for workers. CSR is multifaceted and can include environmental concerns but I focus on workers’ rights and trying to amplify worker voice in the workplace environment.

Outside of the law there are extralegal tools that can be used to protect precarious workers. Uber and other such platforms can create a code of conduct that guarantees those who drive for the company make a certain minimum amount, similar to hard law provisions but acting outside of those boundaries. The potential to allow workers to have their voice heard in soft law mechanisms that govern their workplace is to allow workers greater control over their workplaces. Codes of conduct also need an enforcement mechanism to ensure compliance which is often the role of a monitoring agency.

Lawyers can use their knowledge and expertise to help social justice issues outside of hard law mechanisms and instead can help devise soft law tools that further human rights.

Vanisha H. Sukdeo, B.A., LL.B., LL.M. is a lawyer, and Ph.D. Candidate at Osgoode Hall Law School. Vanisha’s first book entitled Regulation and Inequality at Work: Isolation and Inequality Beyond the Regulation of Work was published on 3 July, 2018 with Routledge. Her second book with Routledge entitled Corporate Law, Codes of Conduct and Workers’ Rights is scheduled for publication in July 2019. She is currently the Director of Policy Research with FAIR Canada which is a national charity that focuses on investors rights.

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