#16797 - Personal Scope Of Labour Law - Labour Law

KEY THEMES:

• 31.4 million out of 65 million living in the UK are in employment – central importance.

• Unequal bargaining power distinguishes labour contracts (Autoclenz v Belcher per Lord Clarke) – deserve treatment as autonomous subject.

Justifications for interference?

1. TRADITIONAL APPROACH= imbalance of bargaining power: overriding freedom of contract doctrine

• Kahn Freud- employment necessitates some command + control. There is an act of submission and subordination (nb notion of subordination is a legal notion and only workers in subordination have protection of labour law e.g issue of Uber).

• However, law can infuse this relation to control the extent to which managers can control/create mechanisms for the enforcement of rules to protect workers.

• Although, subordination doesn’t necessarily imply oppression or exploitation- employer possesses some inherent rights but most employment relationships have social+ legal controls over the employer’s powers+ degree of autonomy for employee due to LL [status in return for seizing this power e.g ‘worker’ receives rights to offset inherent imbalance].

• What the worker is selling to the employer is their labour capacity (employer hiring time/task).

• NB: Capital hires labour in a capitalist economy, not the other way round.

• Law concerned with providing indirect ‘auxiliary support’ for the practice of collective bargaining:

• However from 1970s onwards TUs weaker. Regulatory legislation gives workers direct rights as individuals rather than protecting the collective.

Criticism:

• Economists have attacked the notion that legal intervention is necessary to offset inequality in bargaining power:

• Kennedy – says with quantity and price, employees can get any contract term they’re prepared to pay for.

• Lack of analytical precision. Eg, consumers suffer from unequal bargaining power in contracting process but are not viewed as a subject of labour law.

• Langille – ‘inequality of bargaining power is outmoded as a justification and fails to assist us in identifying who should be covered and protected by labour laws’.

2. REGULATE LABOUR MARKET FAILURES AND ACHIEVE EFFICIENT LABOUR MARKETS

• LL seen to be a cost but there are inherent failures in markets due to asymmetry of info so most social scientists says it does have an economic efficiency role as well as human protection.

3. PROTECT HUMAN DIGNITY- right to living wage, freedom of association @ work.

4. ADVANCE SOCIAL INCLUSION- LL tends to protect those with least bargaining power. Workers can pool their power + resources through Tus to engage in collective bargaining from their employers.

• LL encourages that higher share of nat income goes to wages compared to dividends (raises labour share and reduces capital share).

NATURE AND SCOPE OF LABOUR LAW

Subject-matter:

• Deakin+ Morris- the discipline of labour law is defined in part by its subject-matter, in part by an intellectual tradition.

• Subject matter= rules which govern the employment relationship (CL rules, legislation, extra-legal sources [e.g collective bargaining b/w trade unions and employers]).

• Broad conception of LL= framework for the existence+ operation of all institutions of labour market (business enterprise, trade unions, employers’ associations, the state [as employer+ regulator]).

• Subdivisions in labour law:

1. Employment law- law governing the relationship b/w workers and employers

2. Collective labour law- the law governing:

• Relationship b/w trade unions+ employer

• Relationship b/w trade unions and their members.

NB: NOT ON COURSE: HEALTH+ SAFETY LAW, PENSIONS, EMPLOYEES’ RIGHTS UNDER IP LAW+ COMPENSATION FOR INDUSTRIAL INJURY + DISEASE.

Intellectual influences:

1. SOCIAL/ INDUSTRIAL PLURALISM: dominant in British labour law C20th till 1979

• Workplace characterised by plurality of interests. Workers and employers (labour and capital) have divergent interests in the capitalist economy. LL needs to support the countervailing power of collective bargaining. LL needed to provide the basis of workers’ organisationwhich is why LL supports TU freedom and the right to collective bargaining.

• Pluralism allows the right to strike which private law regards as an interference in the market.

• Where strike used to be seen as a tort or a crime. Pluralism sees it as a necessary expression of collective worker power.

• Doesn’t say reconciliation of interests are impossible but recognise that workers have distinct interests of employment and bring joint decision making to bring the interests together.

• German ‘social jurists’- early C20th:

1. Prevailing private-law definition of employment (in terms of contract) masked the social reality of inequality b/w employer+ employee.

2. Legal and collective intervention could offset the negative socioeconomic effects of inequality inherent in the employment relationship.

• Manifestation of this idea found in legislation:

1. Auxiliary legislation- supports collective bargaining.

2. Regulatory legislation- intervened directly in the employment relationship in order to protect the individual worker.

• Supports emergence of TUs as bodies representing employees in collective bargaining with employers but also encouraged direct regulatory intervention of state in certain areas ( e.g health+ safety, min wages, working time).

• The lawyer must go ‘through’ law to policy, but she ‘must go through [the law] and not get stuck in it’ (Otto Kahn-Freund, 1966)

• Policy is important but doctrinal analysis is more important for the lawyer.

2. MANAGERIALIST/UNITARIST PERSPECTIVES

• Say there is no fundamental conflict of interest b/w workers and employers and see less need for legal intervention of a protective kind e.g TUs. Say mutual interest of employer + workface e.g contract of employment is a legal institution, to integrate the interests of both.

• Want to regulate collective bargaining in order to ensure it operated in the ‘public interest’.

• Accepts need for many rules of emp law which impose reciprocal obligations of trust and cooperation on the employer and worker (words often used by the courts).

• Inspired the ill-fated Industrial Relations Act 1971.

3. MARKET LIBERALISM- big influence in Thatcher labour law reforms.

• Denies that the contract of employment is fundamentally diff from other types of contractual relationship. Sees labour market as resting on the private law of contract, tort+ property.

• Legislation may also b needed to remove interferences with the workings of free market e.g collective bargaining. Role of LL is to remove market distortions ie remove Tus which are like cartels.

4. RIGHT-BASED PERSPECTIVES (HUMAN RIGHTS)- new labour

• LL should focus on the individual’s position in the enterprise and in the wider labour market.

• Thinks collective bargaining is inadequate solution.

• More far-reaching labour market regulation than neoliberal.

• Feminist theory encouragedanti-discrimination legislation since 1970s

• Workers to have human rights e.g dignity, living wage- perhaps indivisibility of civil and political rights with economic and social rights.

DISTINCTIVE FEATURES OF LABOUR LAW REGULATION:

1. EMPLOYMENT RELATIONSHIP AS HIERARCHICAL

• Explained above as asymmetrical.

2. LABOUR LAW AUTONOMOUS FROM GENERAL PRIVATE LAW

• Can’t be seen as purely contractual.

• Contractual principles adapted with legislation.

3. LABOUR LAW CREATED BY STATE THROUGH LEGAL SYSTEM BUT ALSO THROUGH TU’S AND EMPLOYERS/EMPLOYERS’ ASSOCIATIONS

• Collective bargaining is a kind of source of labour law.

• Also true of custom + practice in the workplace, internal rules of organisations and human resource management practice.

• Have to recognise extra-legal norms as having validity as sources of law e.g how collective agreements take effect at the level of the individual employment relationship.

SOURCES OF LABOUR LAW

1. COMMON LAW

• Common law concept of contract of employment.

• Law of tort plays role in defining the liability of TUs and others who organise strikes+ forms of industrial action (the economic torts).

Labour law confers a number of procedural and substantive rights:

2. COLLECTIVE BARGAINING (procedural)

• Procedural right coz the substance of the bargain is still left open to the parties to determine through their now restructured bargaining relationship.

• In workplaces where employers recognise TU’s for purposes of collective bargaining, collective agreements are likely to b biggest source of regulation of the terms+ conditions of employment.

• Collective bargaining (80% in 1970s) now less than 1/3^rd of workforce.

• TU membership density (% of employees who are union members has halved from 1979 to now).

• Only 1/5^th of workers in the private sector are union members.

• Decentralisation of collective bargaining: multi-employer agreements, sectoral or national agreements less important source of norms than agreements made at plant or company level.

• NB: TULRCA 1992 s179- collective agreements b/w employers and TUs are presumed not to be legally binding unless the parties to them expressly provide otherwise in writing.

• Although, courts have accepted the normative terms of collective agreements e.g dealing with pay, hours etc of individual employees can be incorporated into the individual contracts of employees.

3. LEGISLATION

• In 3 main statutes:

• Trade Union and Labour Relations (Consolidation) Act 1992 [TULRCA]- most collective rights

• Employment Rights Act 1996 [ERA]

• Equality Act 2010 (EqA)

• The Employment Relations Act 1999 [ErelA 1999], Employment Rights Act 2002 [ERA 2002], Employment Relations Act 2004 [ErelA 2004] and Work and Families Act 2006 [WFA] take effect largely...