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NATURE AND SCOPE OF LABOUR LAW
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.
Economists have attacked the notion that legal intervention is necessary to offset inequality in bargaining power:
o 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.
o 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.
o 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
Deakin+ Morris- the discipline of labour law is defined in part by its subject-matter, in part by an intellectual tradition. NATURE AND SCOPE OF LABOUR LAW
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.
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. NATURE AND SCOPE OF LABOUR LAW
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
- 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 1/3rd of workforce.
TU membership density (% of employees who are union members has halved from 1979 to now).
Only 1/5th 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. NATURE AND SCOPE OF LABOUR LAW
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.
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 through amendments to TULRCA and ERA.
A number of measures implementing EC standards have been separately enacted:
- Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) [TUPE].
Equality Act 2010 (EqA 2010)- principal anti-discrimination statute.
Superseded following provisions:
- Equal Pay Act 1970 [EqPA]
- Sex Discrimination Act 1975 [SDA]
- Race Relations Act 1976 [RRA]
- Disability Discrimination Act 1995 [DDA
- Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) [EE(RB)R]
- Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) [EE(SO)R
- Employment Equality (Age) Regulations (SI 2006/1031)[EE(A)R]
Auxiliary legislation examples(for collective bargaining):
The statutory immunities, supporting the right to form trade unions (TULRCA 1992, Part II) and the right to strike (TULRCA 1992, Part V)
Statutory support for information and consultation rights of employee representatives (TULRCA
Statutory support for trade union recognition (TULRCA 1992, Sched. A1, inserted by ERelA 1999 and amended by ErelA 2004).
Regulatory legislation examples (for collective bargaining):
The national minimum wage (NMWA 1998)
Controls over working time (EC Directive 93/104; Working Time Regulations 1998)
Employment protection legislation, including right in relation to wage protection, sickness, lay-off
(i.e. temporary suspension of work), termination of employment (see various parts of ERA 1996).
British labour legislation features:
Absence of clearly-articulated fundamental rights- ie unlike constitutions of continental European systems but incorporation of ECHR by HRA 1998 starting to take effect e.g
- Right to fair hearing (Art 6 ECHR), freedom of association (Art 11- Wilson and Palmer v UK
), Demir and Baykara v Turkey 2009), private life (Art 8), non-discrimination (Art 14).
Complex areas of the law e.g the law relating to industrial conflict [criticised by the ILO].
Tensions b/w statute and common law. NATURE AND SCOPE OF LABOUR LAW
Most statutory rights are superimposed on the contract of employment and don't take the form of contract terms but instead operate as a 'floor of rights'.
- Legislation may be seen as a ceiling, preventing further development of common law.
Codes of Practice- source of regulation (made by SoS, must be approved by Houses of Parl).
- E.g Code of Practice on Picketing, on TU Ballots on Industrial Action.
- Also made by regulatory agencies Advisory, Conciliation and Arbitration Service, ACAS (e.g. on
Disciplinary Procedures), and the Equality and Human Rights Commission, EHRC (on equality and anti-discrimination law).
- Voluntary codes include TUC Disputes Principles and Procedures (Bridlington Principles) on inter-union conclicts concerning recruitment+ spheres of influence.
- Nb: TULRCA 1992 s207: Failure to observe a provision of a Code doesn't render a person liable to any legal proceedings but Codes are admissible in evidence b4 employment tribunals and any relevant provision must be taken into account by a court.
International Labour Standards:
Intl Labour Organisation (ILO) is a UN organisation.
Sets labour stands through deliberation b/w gov reps, employers + employees from each Member.
State Standards may be embodied either in Conventions, which become binding on States once ratified, or Recommendations, which are intended to have persuasive effect.
Freedom of association mentioned in ILO Constitution Convention No. 87 on Freedom of Association and Convention No. 98 on the Right to Organise and Collective Bargaining.
ILO Declaration of Fundamental Principles and Rights at Work, adopted in June 1998, requires all member states to recognise the following principles whether or not they sign up to particular
- Freedom of association and the effective recognition of the right to collective bargaining
- The elimination of all forms of forced or compulsory labour
- The effective abolition of child labour
- The elimination of discrimination in respect of employment and occupation.
Nb: for some countries, ILO standards regarded as source of law but not UK (coz needs to first be a
UK ratified 200+ ILO Conventions but some UK law doesn't conform w ILO standards e.g on strikes.
The ILO has only once decided to take action against a defaulting State (Myanmar in 2000) under
Art.33 of the ILO Constitution.
Complaints on freedom of association can be made to the ILO Committee on Freedom of
UN Dec of HR and Intl Cov on Economic+ Social Rights also important sources.
Demir and Baykara v Turkey (2009)
ECtHR ruled that the ECHR and ECS (European Social Charter 1961) should be interpreted so as to complement each other.
Broad reading of freedom of association rights in Art 11 ECHR. As it is a convention right (HRA in UK)- has far reaching consequences for UK law.
Labour law is an area of 'shared competence'- EU and member states both act.
EU's powers to adopt labour rules by directives or regulations are limited.
Social Policy Title of TFEU (Arts 151-161)- EU can adopt directives which can require unanimity amongst MS or qualified majority and some matters are excluded altogether. NATURE AND SCOPE OF LABOUR LAW
Lots of EU level regulation in: equal treatment or non-discrimination; health and safety; collective redundancies and transfers of undertaking; working time;l information and consultation of employees),
Little EU level regulation on: (termination of employment, which within the Union's competences;
minimum wages, freedom of association rights and the right to strike).
There's no comprehensive set of rules governing labour law at EU level, or 'European labour code'.
General principles of EU law do include recognising certain rights:
- Right to strike (ITWF v Viking Line 2008).
- Solidarity Chapter in the Charter of Fundamental Rights of the EU (this charter has same legal value as EU treaties, Art 6 TEU).
Clash b/w ec rights in the '4 freedoms' and competition law and labour law at EU + domestic level.
- Viking case- free movement for employers came into conflict w domestic labour law regimes.
- More recently, the CJEU has invoked the principle of the freedom to conduct a business in Art 16 CFREU to support the employer's right not to be bound by a collective agreement to which it is not a party, in the context of transfers of undertakings, in Case C-426/11 Parkwood Leisure
Ltd. v. Alemo-Herron .
Sovereign Debt Crisis: Troika agreementderegulatory impact on domestic labour law yet at EU
level, social policy affected by focus on economic governance directives and regulations and Treaty on Stability, Coordination and Governance.
NB: MOST UK LABOUR LAW DOESN'T COME FROM THE EU.
Institutions of Labour Law:
Courts: Employment Appeal Tribunal (EAT), Employment Tribunal (ET)
EAT is functional equivalent of a high court.
COA hears labour cases, very rarely makes it to UKSC.
Conciliation and Arbitral bodies: Advisory, Conciliation and Arbitration Service (ACAS), Central
Arbitration Committee (CAC)
Registration bodies: Certification Officer (CO)
Regulatory agencies: Equality and Human Rights Commission (EHRC)
Director of Labour Market Enforcement- oversee labour standards.
Gangmasters and Labour Abuse Authority- extensive powers to regulate casual labour markets.
Remit of this has gone beyond initial focus.
- Can remove permission to act as an agency in certain markets. E.g may even need permission of the state to operate in the market.
- Last 2 getting larger role due to gig economy and migrant/illegal workers
Introduction of tribunal fees from 201380% fall in some categories of tribunal claimsequality cases hardest hit but Unison v Lord Chancellor (2017) [UKSC] overturned the fees regime introduced in 2013revival in the no. of employment tribunal claims.
Unison v Lord Chancellor (2017) [UKSC]
Held the delegated legislation introducing those fees was ultra vires on the ground that they unconstitutionally restricted access to justice.
UKSC relied on EU law but also on UK domestic law to find there was a common law constitutional principle of access to justice.
Deakin thinks EU law was the main reason for the outcome. Denial of tribunal access was contra to EU law which is the main reason the case was decided. Easier for UKSC coz the legislation was delegated legislation- would have been harder if it was made through an Act of Parliament.
HISTORICAL DEVELOPMENT NATURE AND SCOPE OF LABOUR LAW
Pre 1875: Legislative restriction of TUs, criminalisation of breach of contract (when worker takes part in strike and when a TU officer organises a strike it induces a breach of contract so going on strike violated stat and common law crimes [including conspiracy].
- The Conspiracy and Protection of Property Act- removed crim sanctions allowed TUs statutory immunities, allowing them to form and take part in peaceful industrial action.
- Courts expanded civ liability for the organisation of industrial action through economic torts and opening up TUs to the threat of bankruptcy through civil damages claims (Taff Vale).
1875-1906: removal of restrictive legislation as part of the 'settlement' of legal acceptance of TUs and collective bargaining.
- Trade Disputes Act 1906- strike organised had qualified immunity (for encouraging strikes) and gave TU's a blanket immunity from tort liability.
Voluntary procedures+ self-regulation of terms and conditions through collective bargaining encouraged by legislature:
- Public sector: Royal Commission on Labour Report 1894, Conciliation Act 1896, Industrial Courts
Act 1919, Whitley Reports 1916-19, Whitley Councils+ (1916-19).
- Private sector: Voluntary Joint Industrial Councils.
However, no direct regulation of the terms of collective agreements 'collective laissez-faire'.collective laissez-faire'.
1945- Macroeconomic policy of Beveridge was focus on full employment so there were legal minimum wages in force in certain industries under Trade Boards and Wages Councils Acts floor to wages+
- Judicial abstentionism lasted till 1960s till courts skirted around immunities.
- Trade Union and Labour Relations Act 1974 and TULR (Amendment) Act 1976- re-enacted the trade dispute immunities of TDA 1906made law of 1906 stronger+ clearer.
1979-1997- Impact of market individualism+ neo-liberal economic policies:
1. Ending of 'full employment guarantee' in macroeconomic policy (1970s, 80s); replacement by goal of 'raising employment rate' (1990s, 2000s)
2. Return to private law- stripping away statutory immunities (Employment act 1982- removed blanket immunity of TUs).
3. Restrictive regulation of TUs- aimed at limiting exercise of collective power + imposing procedural requirements on the exercise of the right to strike (e.g ballots+ notice provisions [TU Act 1984,1988,1990,1993).
4. Competition policy- open markets to influence competition.
5. Local Government Acts 1988- compulsory competitive tenderingprivatisation+ marketisation in public sector and growing use of outsourcing and offshoring by employers.
6. Increasing numbers not covered by employment protection law due to rise of 'atypical' work: parttime, fixed-term, temporary/agency work 1997-2010- New labour:
1. Basic (but low) floor of rights inc. nat min wage, HRA and incorporating new EU rights e.g working time limits, bar on discrimination against part-time and other atypical workers.
2. Family-friendly legislation- extending maternity and parental leave, rights to time off for fam responsibilities, childcare strategy.
3. Collective representation [TU recognition, incorporating EU rights to info+ consultation (ICER 2004)
+ rights for worker representatives in national enterprises].
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