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LABOUR: SOURCES, THEORY AND SCOPE1. NATURE AND SCOPE OF LABOUR LAWDeakin and Morris, Labour Law p. 1: 'The discipline of labour law is defined in part by its subject-matter, in part by an intellectual tradition'
? 1.1 Subject-matterThe immediate subject-matter of labour law: Rules which govern the employment relationship: these include rules derived from the common law, from legislation, and from extra-legal sources, in particular collective bargaining between trade unions and employers.A broader conception: The normative framework for the existence and operation of all the institutions of the labour market: the business enterprise, trade unions, employers' associations and, in its capacity as regulator and as employer, the state (Deakin and Morris p. 1).It is conventional to distinguish between the following types of law:Individual labour law: the law governing the relationship between workers and employers e.g. contracts of employment, labour standards legislation, unfair dismissal legislation, anti-discrimination or equality law, human rights at work etcCollective labour law: the law governing the relationship between trade unions and employers and between trade unions and their own members e.g. employee representation, collective bargaining, right to strike etc
? 1.2 Intellectual influencesA number of ideologies can shape our understanding of labour law:Social or industrial pluralism
? Foundation for the idea of legal support for the collective institutions of the labour market, and in particular for trade union freedom and the right to collective bargaining. Its origins lie in a legal and sociological analysis of the employment relationship which is associated with the work of German 'social jurists' (sozialjuristen) working in the early decades of the twentieth century, in particular Hugo Sinzheimer.
? The fundamental idea was two-fold: Firstly, that the prevailing private-law definition of employment, in terms of contract, masked the social reality of inequality between employer and employee; and, secondly, that legal and collective intervention could offset the negative social and economic effects of the inequality which was inherent in the employment relationship.
? The concrete manifestation of these ideas was found in two forms of labour legislation: auxiliary legislation, which seeks to support collective bargaining; and regulatory legislation, which intervened directly in the employment relationship in order to protect the individual worker.
? The pluralist perspective therefore supported the emergence of trade unions as bodies representing employees in collective bargaining with employers, but it did not rule out direct the regulatory intervention of the state in certain areas (e.g. health and safety, minimum wages, working time). This was the perspective which dominated British labour law from the early years of the twentieth century up to 1979.Managerialist or unitarist perspectives
? These deny that there is a fundamental conflict of interest between workers and employers and therefore see less need for legal intervention of a protective kind. Such a perspective would seek to regulate collective bargaining in order to ensure that it operated in the 'public interest', while also accepting the need for many rules of employment law which impose reciprocal obligations of trust and cooperation on the employer and worker. This perspective competed with the pluralist one for influence in the post-war period up to the late 1970s and found its most concrete expression in the ill-fated Industrial Relations Act 1971.Market liberalism
? A related but somewhat different perspective. This denies that the contract of employment is fundamentally different from other types of contractual relationship, and sees the labour market as resting on the private law of contract, tort and property. Legislation may also be needed to remove interferences with the workings of the free market, which, for this purpose, may include collective bargaining. This perspective heavily influenced the programme of labour law reform of the Conservative administrations in Britain between 1979 and 1997.Human Rights-based perspectives
? These argue that labour law should be deployed to bring about a more fundamental reorientation of the individual's position in the enterprise and in the wider labour market. Contrary to the pluralist position, this point of view questions whether collective bargaining is an adequate solution to the inequalities which employment generates or reproduces. It also sees a need for more far-reaching labour market regulation than that implied by the neoliberal argument. Feminist theory, amongst others, has played a part in the development of this set of perspectives, and it can be seen in the body of law which has grown out of anti-discrimination legislation since the 1970s.Each of these influences, then, shapes labour law to some degree. The pluralist influence is far from irrelevant to an understanding of the present law, notwithstanding the past two decades in which market liberalism, and also rights-based perspectives, dominated debates. The classic account of pluralism in labour law remains:O. Kahn-Freund, Labour and the Law (3rd. ed. 1983 by P. Davies and M. Freedland), ch. 1.See also, on the nature of Labour Law as a discipline:B. Hepple, 'Introduction', in B. Hepple (ed.) The Making of Labour Law in Europe (London: Mansell, 1986)H. Collins, 'Labour law as a vocation' (1989) 105 LQR 468-484.2. SOURCES OF LABOUR LAWSee generally Deakin and Morris, Labour Law, ch. 2.
? 2.1 Distinctive features of labour law regulationThe idea of labour law as a distinctive form of regulation has a number of features:Labour law sees the employment relationship as a hierarchical one, based the 'subordination' of the individual worker to the control or power of command of the employer.
? This idea is captured by Kahn-Freund's description of the employment relationship in 1972: 'in its inception it is an act of submission, in its operation it is a condition of subordination, no matter how much the submission and the subordination may be concealed by that indispensable figment of the legal mind known as the contract of employment' (Labour and the Law, p. 8). Subordination does not necessarily imply oppression or exploitation; it may be thought of as a technical expression which describes a particular kind of asymmetrical relationship, in which the employer possesses some inherent right to give orders and the employee has to obey. There is an exchange, albeit unequal. Many employment relationships are also characterised by social and legal controls over the employer's powers, and by some degree of autonomy for the employee, often as a consequence of labour law. Further, the value created by the employee for the employer is owner of the assets/value created by the former, this is capitalism.Labour law is seen as 'autonomous' from general private law, in particular the law of contract.
? The sociological analysis of employment in terms of asymmetry or inequality between employer and employee implies a particular juridical perspective on the employment relationship, one which sees it as having features which are not captured by a purely contractual analysis. This does not mean, however, that contractual analysis is completely irrelevant in the context of labour law; rather, that contractual principles have been adapted as they have come into contact with legislation. The relationship between contract and legislation is a source of continuing doctrinal tension in contemporary labour law.
??Labour law is created not only by the state, through the legal system, but also by social groups, in particular trade unions and employers/employers' associations.
? This can be seen in the idea that collective bargaining is a kind of source of labour law, but the same thing may also be said of custom and practice in the workplace, the internal rules of organisations, and human resource management practice. Essential, then, to the study of labour law, is the interaction between the legal sources and the extra-legal sources. For lawyers, this means understanding the mechanisms by which the law recognises extra-legal norms as having validity as sources of law. The classic example of this is the process by which collective agreements take effect at the level of the individual employment relationship.
2.2 The common law as a source of labour lawThe common law concept of the contract of employment remains, in Kahn-Freund's phrase, the 'cornerstone' of labour law, notwithstanding the conceptual tensions which this produces. The law of tort also plays a vital role, in particular in defining the liabilities of trade unions and others who organise strikes and other forms of industrial action (the 'economic torts').
2.3 Collective bargainingIn workplaces where employers recognise trade unions for the purposes of collective bargaining, collective agreements are, in practice, the most significant source of regulation of the terms and conditions of employment. However, the coverage of collective bargaining (which had been around 80% in the late 1970s) is now less than one-third of the workforce. Union membership density (percentage of employees who are union members), which was 57% in 1979, is now below 30% Only one in five workers in the private sector is a union member.The past twenty years have also seen the decentralisation of collective bargaining: multi-employer agreements, so-called sectoral or national agreements, are now much less important as a source of norms than agreements made at plant or company level.One of the fundamental principles of British labour law is that collective agreements between employers and trade unions are presumed not to be legally binding unless the parties to them expressly provide otherwise in writing (TULRCA 1992, s.179). However, the courts have long accepted that the so-called normative terms of collective agreements - those dealing with pay, hours, etc. of individual employees - can be incorporated into the individual contracts of employees (see further below).
2.4 LegislationMuch of modern labour legislation is found in three largely consolidating statutes:
? Trade Union and Labour Relations (Consolidation) Act 1992 [TULRCA]
? Employment Rights Act 1996 [ERA]
? Equality Act 2010 (EqA)Others take effect largely through amendments to TULRCA and ERA, such as:
? 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]Other important measures include:
? National Minimum Wage Act 1998 and
? Working Time Regulations 1998 (SI 1998/1833).A number of measures implementing EC standards have been separately enacted. For instance:
? Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) [TUPE].The principal anti-discrimination statute is the Equality Act 2010 (EqA 2010). This measure has superseded the following provisions, which it consolidates and amends in part:
? 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]Examples of auxiliary legislation include: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 info and consultation rights of employee representatives (TULRCA 1992 s.178-198).Statutory support for trade union recognition (TULRCA 1992, Sched. A1, inserted by ERelA 1999 and amended by ErelA 2004).Examples of regulatory legislation include: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 (ERA 1996).Note the following general features of British labour legislation:The absence of clearly-articulated fundamental rights.
? There is no equivalent to the social rights provisions which are found in the constitutions of continental European systems, although the incorporation into domestic law of the European Convention on Human Rights by the Human Rights Act 1998 is beginning to have an impact, e.g. right to a fair hearing (art.6 ECHR), freedom of association (Art. 11, esp. Wilson and Palmer v. UK  IRLR 568 and Demir and Baykara v. Turkey  IRLR 766), private life (Art. 8), non-discrimination (Art. 14).No codification - just consolidation, periodically.
? See above.Extreme complexity of certain parts of the law.
? E.g. the law relating to industrial conflict, which was criticised on these grounds by the ILO: B. Simpson (1995) 24 ILJ 235.Tensions in the relationship between statute and the common law.
? Most statutory rights are 'superimposed' on the contract of employment, and do not take the form of contract terms. There are various implications of this, see Deakin and Morris, Labour Law pp. 132-135.
? Instead of operating as a 'floor of rights', legislation may be construed as a ceiling, preventing further development of common law:
? Johnson v Unisys Ltd  1 AC 518, HL
? Eastwood v Magnox Electric plc  IRLR 733, HL; Deakin & Morris p. 419.The significance of Codes of Practice as a source of regulation.Codes made by the Secretary of State must be approved by resolution of each House of Parliament. E.g. Code of Practice on Picketing, and the Code of Practice on Trade Union Ballots on Industrial Action.Codes may also be made by regulatory agencies including the 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).
A failure to observe a provision of a Code does not render a person liable to any legal proceedings, but Codes are admissible in evidence before employment tribunals and any relevant provision must be taken into account by a court of tribunal (see e.g. TULRCA 1992, s. 207).Voluntary codes include the TUC Disputes Principles and Procedures known as the Bridlington Principles, on inter-union conflicts concerning recruitment and spheres of influence.
? B. Simpson (1993) 22 ILJ 181.
2.5 International labour standards:The International Labour Organisation
? See generally Deakin and Morris, Labour Law, paras. 2.39-2.43.The ILO is an international body under the auspices of the UN; its origins go back to the Treaty of Versailles (1919).It sets labour standards through a process of tripartite deliberation between representatives of governments, employers, and 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.The principle of freedom of association is mentioned in the ILO Constitution and in several Conventions, in particular 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 Conventions:
? 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.In some systems, ILO standards may be regarded as a source of law in domestic law, but in the UK this is not the case and for the relevant standard to take effect it must first be put into the form of a UK statute. See:
? CCSU v. Minister for the Civil Service  IRLR 28:
? K. Ewing, Britain and the ILO, Institute of Employment Rights, 1994:The UK has ratified over of 200 or so ILO Conventions, but in some respects (e.g. on strikes) UK law is not in conformity with ILO standards. Complaints on freedom of association can be made to the ILO Committee on Freedom of Association. There is also a supervisory system based on reporting requirements placed on States. These reports are monitored by the Committee of Experts on the Application of Conventions and Recommendations, and a Conference Committee on the Application of Standards. The ILO has only once decided to take action against a defaulting State (Myanmar in 2000) under Art.33 of the ILO Constitution.OtherOther UN-related sources include the UN Declaration of Human Rights (Arts. 2, 4, 7, 18-20) and the International Covenant on Economic and Social Rights.Two texts of the Council of Europe, the European Convention on Human Rights (above), and the European Social Charter of 1961 (revised 1996) are also significant.
? Demir and Baykara v. Turkey  IRLR 766: ECtHR ruled the ECHR and ECS should be interpreted so as to complement each other (hence giving rise to a broad reading of freedom of association rights contained in Art. 11 ECHR), and in line with developments in international labour law more generally, including reports of the ILO Committee on Freedom of Association on ILO Conventions 87 and 98.
? Because Art. 11 ECHR is a convention right which has effect in UK law by virtue of the Human Rights Act 1998, the Demir decision has potentially far-reaching consequences for UK law.
? K. Ewing and J. Hendy, 'The dramatic implications of Demir and Baykara' (2010) 39 ILJ 2.
2.6 European Union lawThe substantive influence of EU law on UK labour law has been considerable:
? Deakin and Morris, Labour Law, ch. 2, and
? Barnard, EU Employment Law (OUP, 2012), ch. 1.
? Barnard, Free movement and labour rights, squaring the circle (2013)Labour law is in principle an area of 'shared competence', meaning that the EU and the member states can both act in this field, but the EU's powers to adopt labour law rules by directives or regulations are limited.Under the Social Policy Title of the TFEU (Arts. 151-161), the Union can adopt directives which in some cases require unanimity among the member states, and in others require only a qualified majority; while certain matters are excluded altogether (see Art. 153).Over time, a substantial body of EU law has grown up on some aspects of labour law (in particular equal treatment or non-discrimination; health and safety; collective redundancies and transfers of undertaking; working time; information and consultation of employees), while in other areas there is very little EU level regulation (termination of employment, which within the Union's competences; minimum wages, freedom of association rights and the right to strike).Thus there is no comprehensive set of rules governing labour law at EU level, or 'European labour code'.Human rights law is becoming an increasingly important part of EU labour law.This is reflected in the recognition of certain rights, incl. the right to strike, as 'general principles' of EU law ( Case C-438/05 ITWF v. Viking Line  IRLR 143), and in the rights set out in the Charter of Fundamental Rights of the European Union (CFREU), in particular in its Solidarity Chapter.As a result of changes made by the Lisbon Treaty, the CFREU has 'the same legal value' as the EU Treaties ( Art. 6 TEU), although the Charter 'does not extend in any way the competences of the Union as defined in the Treaties' (Art. 6 TEU). It is arguable that the CFREU mostly restates right which the Court has recognised, or would recognise, as general principles of EU law, and that its provisions mostly overlap with the competences set out in the Social Policy Title (see Deakin and Morris, para 2.39)A highly contested issue is the clash between the economic rights set out in EU internal market law (the 'four freedoms') and competition law, and labour law at both EU and national level.The principle of free movement for employers (the rights of establishment and to provide services) came into conflict with domestic labour law regimes in e.g.
? Case C-341/05  IRLR 160 Laval un Partneri v. Svenska Byggnadsarbetareforbundet (see below)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:
? Case C-426/11 Parkwood Leisure Ltd. v. Alemo-Herron  IRLR 744:The sovereign debt crisis and the austerity measures taken to address it since 2009 have had considerable implications for EU labour law and the domestic labour law systems of the member states.The Memoranda of Understanding agreed between the 'Troika' of the European Commission, European Central Bank and IMF, have had a deregulatory impact on domestic labour law, while, at EU level, social policy has been affected by the growing focus on economic governance in measures such as the 'six pack' and 'two pack' of economic policy directives and regulations, the Euro Plus Pact, and the Treaty on Stability, Coordination and Governance (or 'Fiscal Compact').
? Barnard, 'The financial crisis and the Euro Plus Pact: a labour lawyer's perspective' (2012) 41 ILJ 98. UK labour law in comparative perspective'Voluntarist' focus of UK labour law meant that trade union freedoms were more extensive than in other systems, but direct legal regulation of employment relationship less extensiveSince the 1980s, labour law in the UK has weakened by comparison to other European systems, but with recovery from the mid-1990s to reflect the influence of EU law and the New Labour reforms.Tony Blair: The UK has the most "flexible" labour laws in the world i.e. the weakest. Only beaten by USIn the US, there is no unfair dismissal (employment at will). There may be no right to notice. No employment protection. A duty to bargain is heavily limited to certain circumstances.There is no overall convergence and in particular, no convergence on the US model.Union density has declined across the world.3. INSTITUTIONS OF LABOUR LAWDeakin and Morris, paras. 2.15-2.20.
? Labour Law has a number of specialised institutions, the most important of which are the specialised labour courts, the employment tribunals. Note in particular the following:Courts: Employment Appeal Tribunal (EAT), Employment Tribunal (ET)Conciliation/Arbitral: Advisory Conciliation and Arbitration Service (ACAS), Central Arbitration Committee (CAC)Registration bodies: Certification Officer (CO)Regulatory agencies: Equality and Human Rights Commission (EHRC).
? Other institutions:Government department: BISTrade unions and employee associations4. HISTORICAL DEVELOPMENTDeakin and Morris, ch. 1: Examining the evolution of British labour law through periods of restriction (up to 1875/1906), collective laissez-faire (1875/1906-70, then modernised 1974-1979), and market individualism.
? The removal of restrictive legislation in the period 1875-1906 as part of the 'settlement' which saw legal acceptance of trade unions and collective bargaining.Up to the third quarter of the 19th century, it was a crime for individual workers subject to 'master and servant' laws to commit a breach of the contract of service, and going on strike involved the commission of various statutory and common law crimes (including 'conspiracy'). Formation of unions, while not a crime after the 1820s, was problematic under the 'restraint of trade' doctrine at common law.The Conspiracy and Protection of Property Act removed criminal sanctions to the margins of the law relating to employment and provided trade unions with the first statutory immunities, allowing them to form and to take part in peaceful industrial action. The courts responded by expanding civil liability for the organisation of industrial action through the economic torts, and opening up trade unions to the threat of bankruptcy through civil damages claims in the Taff Vale case (Taff Vale Rlwy Co. v. ASRS  AC 426.)
? The rise of collective laissez-faire, 1906-1979.Parliament responded to Taff Vale with the Trade Disputes Act 1906 which provided organisers of strikes with a qualified immunity (action 'in contemplation or furtherance of a trade dispute' was protected) and gave trade unions a blanket immunity from tort liability. There followed a period in which voluntary procedures and self-regulation of terms and conditions developed rapidly through collective bargaining, with legislative encouragement (note the role of the Royal Commission on Labour report of 1894, the Conciliation Act 1896, the Industrial Courts Act 1919, the Whitley Reports 19161919 and Whitley Councils in public sector, voluntary Joint Industrial Councils at national level in the private sector) but no direct regulation of the terms of collective agreements, hence 'collective laissez-faire'.Note though that there were legal minimum wages in force in certain industries under the Trade Boards and Wages Councils Acts, in recognition of arguments against the inefficiency of low pay, and that state support for 'full employment' after 1945, via macroeconomic policy, provided a de facto floor to wages and terms and conditions.Meanwhile, the courts largely kept out of industrial relations. This judicial 'abstentionism' (see e.g. Crofter case  AC 435) lasted up to the 1960s when the courts began outflanking the immunities (particularly in Rookes v. Barnard  AC 1169. Parliament responded again in the Trade Union and Labour Relations Act 1974 and the TULR (Amendment) Act 1976 which re-enacted the trade dispute immunities of the TDA 1906 in a stronger form, putting the law back 'to what Parliament had intended in 1906 - but stronger and clearer' (Lord Scarman in Duport Steel v. Sirs  ICR 161).
? The impact of market individualism and neo-liberal economic policies, 1979-1997.Several elements within the policies of the Conservative governments between 1979 and 1997 can be discerned. There was, firstly, a 'return to private law' in the form of a stripping away of the statutory immunities in stages, beginning with the Employment Act 1980 and taking a decisive step with the Employment Act 1982, which removed the blanket immunity of trade unions. Secondly, there was restrictive regulation of trade unions, aimed at limiting the exercise of collective power in the labour market and imposing procedural requirements on the exercise of the right to strike (e.g. ballots and notice provisions, beginning with the Trade Union Act 1984 and extended in Acts of 1988, 1990 and 1993). Thirdly, there was the use of competition policy to open up markets to the influence of competitive forces. The Local Government Acts of 1988, which imposed compulsory competitive tendering, was important here, as were similar measures which pushed forward the processes of privatisation and marketisation in the public sector and utilities. Finally, measures aimed to enhance flexibility of employment by removing protective legislation for so-called flexible forms of employment (part-time, temporary and fixed-term employment and self-employment) although it should be noted that the legislation introduced by Labour governments in the 1960s and 1970s had also excluded these groups in many cases.
? A 'New Labour Law' (1997-2010)?The 'Third Way' rested on four principles:(1) the facilitative state - markets must be regulated but not substituted for by the State;(2) civic responsibility - no rights without responsibilities;(3) equality of opportunities;(4) community and democracy.These principles were reflected to some extent in the labour law reforms (1999, 2002, 2004). They included:(1) a basic (but arguably low) floor of rights, including the national minimum wage, the Human Rights Act (above), and the incorporation of 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 family responsibilities, childcare strategy etc;(3) collective representation ('the best method of ensuring that employees are treated fairly'), in particular trade union recognition (1999 amended 2004), and incorporation of EU rights to information and consultation (European Works Councils in large Community-scale undertakings, and rights for worker representatives in national enterprises.).But, at the same time, Conservative laws on industrial action, picketing and ballots for trade union leaders dating from the 1980s and 1990s stayed in place; and there were restrictions on the enforcement of rights through management-controlled procedures and downgrading of procedural fairness by ERA 2002 (), although these measures did not prove to be a success and were later repealed.Hepple and Morris, (2002) 31 ILJ 245:
??Deakin and Morris, paras. 2.20-2.21: Labour law under the Coalition government (2010-15):The Coalition Agreement contained a commitment to carry out a review of employment law. This was implemented from 2011, see http://www.bis.gov.uk/policies/employment-matters/employment-law-review. Relatedly, employment laws were reviewed as part of the government's 'red tape' initiative. See: http://www.redtapechallenge.cabinetoffice.gov.uk/employment-law/.A number of changes to the substantive and procedural aspects of employment law were enacted in measures including the Enterprise and Regulatory Reform Act 2013 and the Growth and Infrastructure Act 2013. The most important include:(1) Extension of the qualifying period for general unfair dismissal protection from one year to two years(2) Requiring claimants to pay 'fees' as a condition of access to employment tribunals (a challenge to this legislation was recently rejected in R. (Unison) v. Lord Chancellor and EHRC  EWCA Civ 935)(3) Altering the rules on the composition of employment tribunals, to reduce the role played by the lay members(3) Introduction of 'employee shareholder' status, enabling employees to contract out of certain statutory employment rights, in return for receiving shares in the employing company or another company in the group
? Hepple 'Back to the future: employment law under the Coalition government' (2013) 42 ILJ 203-223:
? Social Liberalism and Neo-LiberalismThe common core of the Coalition's policy directions is the idea of individual liberty.The Coalition, like New Labour, has endorsed a social liberalist vision of 'industrial partnerships' and cooperation between management and labour rather than an adversarial relationship in which the 'rights' of collective action by workers are protected.Notes the neo-liberal bias of the employment law review. The Coalition has followed a similar course to New Labour in accepting Thatcher's reforms and has no plans to bring the protection of workers taking industrial action in line with international and European standards. The justification for most of their deregulatory measures are that workers' rights are a 'burden to business' and Coalition reports read like a cut-and-paste job from the white papers of the 1980s, including Norman Tebbit's 1985 report Burdens on Business, which show the same strong commitment to market neo-liberalism, although now wrapped up in the rhetoric of 'fairness'. Another move away from social democracy and social liberalism is the continued erosion of tripartite institutions of employers, workers and independent members e.g. the Agricultural Wages Board, Employment Tribunals: "[This] rests on a neo-liberal philosophy that regards the common law of contract and property as the natural basis of free markets and is hostile to state regulation which seeks to adjust conflicts of interest and conflicts of rights between workers and employers by the involvement of their representatives."
? Evidence and Ideology:Argues evidence continues to take a back seat under the Coalition Employment review.The Government has ignored the growing body of theoretical and qualitative research which presents a more nuanced picture e.g. Deakin's work on the effects of changes in employment regulation over time which is shown to have highly varied, complex but positive, efficiency enhancing effects on productivity and growth as well as negative ones.Specific areas of concern include: fears of dismissal litigation (and raising the QP to 2 years which removed an estimated
2.7mil workers from protection - mainly young, migrant, part time women)Asks why British employees require the longest qualifying period in the EU?Expresses concern about 'employee-shareholders' and s.14 of the ERRA which provides that evidence of pre-termination negotiations is inadmissible in subsequent unfair dismissal proceedings - as being opportunities for unconscionable employers to persuade employees to give up their rights, with no guarantee of fair treatment.Says privileging pre-dispute settlement incentivises employers to be less compliant with legal requirements because they can buy off those who make complaints.Capping compensatory awards for unfair dismissal is also neo-liberal in that it will lead to under-compensation in high value cases and will send a signal to employees that they should not bring claims or should settlement.
? Is there an Alternative?Radicals would campaign for a future that goes back to 1979, reinstating freedom to take secondary industrial action &
strong laws to support trade union recognition / collective bargainingA more modest and realisable approach takes as its starting point the analysis by Brown et al in The Evolution of the Modern Workplace which is based on extensive empirical research:Explain changes in employment relations as related to: structural changes to the economy, legal interventions which have withdrawn support for collectivism, toughening competition in global product markets and deregulation of the financial markets.On this basis proposes an alternative strategy:improving relations with employees through developing workplace structures for industrial democracy including rights to information, consultation and co-decision-making.effective enforcement of employment and equality rights by greater involvement of union and other workplace representatives, and the use of inspectorates and agency enforcement;lobbying government, for example, for mandatory equal pay audits for all large employers, and the extension of rights to parental leave;campaigning for the observance of international labour standards, securing compliance by multinational enterprises with their codes of conduct and international collective agreements, and vigorously opposing withdrawal from the EU social and employment chapters and the ECHR, which are the source of nearly half of rights at work in Britain. Labour law under the current Conservative government (2015-present)The newly elected Conservative government has brought forward a Trade Union Bill which will change balloting and notice rules governing industrial action, restrict picketing and related forms of protest including 'leverage action', and impose new controls on union activity via the office of the Certification Officer.In separate regulations, the government is proposing to remove the current prohibition on agency workers being used to replace striking workers. See the Consultation Papers:Ballot Thresholds in Important Public Services, Hiring Agency Staff During Strike Action and Tackling Intimidation of Non-Striking Workers: https://www.gov.uk/government/collections/trade-union-bill. Recent trends in British labour law in comparative perspectiveBritish labour law is sometimes said to be 'light touch' by comparison with the laws of other European countries, but in practice it has been more closely aligned with mainland European approaches than that of the USA since the mid-1990s, in part thanks to the growing influence of EU law after the UK 'opted back' into the Social Chapter of the Maastricht Treaty.S. Deakin, P. Lele and M. Siems, 'The evolution of labour law: calibrating and comparing regulatory regimes' (2007) 146 International Labour Review 133-162.There was no general trend towards the 'deregulation' of labour law from the 1980s to the late 2000s; in many countries, labour law became more protective over this period, at least at the level of formal law or 'law on the books'. This trend was however offset by a decline in union power and influence, and a corresponding decline in the effectiveness of many labour law rights in practice.
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