Keith Ewing

Labour Law: The right to bargain collectively

Introduction Workers join trade unions for a purpose, usually to secure the benefits of higher wages, better conditions of employment, and greater job security, generally gained by a process of collective bargaining. As already explained in Chapter 12, by this process trade unions and employers negotiate a collective agreement to regulate working conditions and to resolve disputes at the workplace. At one time more than two-thirds of the workforce had their terms and conditions of employment regulated in this way, and even today the terms and conditions of just under one-third of workers are regulated by such agreements. Collective bargaining thus continues to be an important process, given that collective agreements are likely also to have an important indirect impact, in the sense that they will influence the terms and conditions of employment of workers beyond those immediately affected by them. In this chapter, we consider the role of the law in the collective bargaining process, the importance of which is recognised in a number of international treaties and by the law and practice of all developed countries. The role of the state in the collective bargaining process arises in a number of ways. The first relates to the need to establish collective bargaining machinery, the role of law arising where it is not possible for the parties to agree to such machinery being established voluntarily. The second is the duties on the parties in the collective bargaining process, in terms of the way they conduct themselves and the steps taken to ensure that bargaining takes place in a transparent and informed way. And the third relates to the legal status and effects of collective agreements. Are they legally binding contracts? What is their effect on the contract of employment? In Britain, conventional wisdom is based on Kahn-Freunds ideas of ‘legal abstention’ and ‘collective laissez faire ’, whereby the state was largely removed from the process of collective bargaining, which was left to the self-regulation of labour and capital. But although a profound insight, ‘collective laissez faire ’ is a principle that may tend to under-estimate the active involvement of the state in building and sustaining collective bargaining institutions in the past, and focus too narrowly on particular forms of state intervention.

Labour Law: Nature and sources of labour law

What is labour law? What are the aims of labour law? Why is it regarded as a distinct and important field of study? One place to start thinking about these questions is the Universal Declaration of Human Rights, adopted by the United Nations in 1948. Universal Declaration of Human Rights, Article 23 (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 23 identifies many of the characteristic aims of labour law: to secure fair access to labour markets under conditions of equal opportunity; to ensure that the conditions under which people work are just, safe, healthy, and respectful of human dignity; to require pay to be fair and sufficient for a decent standard of living; to protect job security and fair treatment at work; to permit workers to form trade unions and other representative organisations to protect their interests at work. In pursuing these aims (and others), the objects of labour law include the contract of employment between employer and worker, working conditions within organisations, relations between workers, access to employment through the labour market, and more generally measures to steer the economy with a view to promoting full employment with decent jobs. Most studies of labour law have not examined these topics dispassionately, but have rather been concerned critically to assess how far labour law achieves the central aims identified in Article 23. The case for studying this subject rests in part on the crucial economic, social and political significance of paid work in a market economy and in part on the distinctive characteristics and problems that labour law must address.

Labour Law: Terms of the contract of employment

The contract of service People work under many different institutional arrangements. In the past, slavery, forced labour, household servants and feudal serfdom have been significant institutional arrangements for work, each with its distinctive legal framework. During the nineteenth century, as industrialisation spread in Europe, the predominant legal institutional arrangement for paid work was located in the law of contract. The legal analysis used the law of contract to express the idea that, in an economic system where the relations of production were co-ordinated through market transactions, the hire of workers to perform work was like other market transactions – a freely undertaken exchange of goods or services in return for payment. On analogy with the contract for the hire of a thing, the relation between employer and labourer was analysed by lawyers as a contract for the hire of services. Lawyers drew a further distinction within the category of contracts for the provision of services. Where suppliers of services such as craftsmen and artisans acted independently, managing their own work, the agreements they made with other businesses were labelled ‘contracts for services’. But, where the hirer managed, supervised and controlled the work performed by the labourer, this arrangement was classified as a ‘contract of service’ or, in modern times, a contract of employment.

Labour Law: The personal scope of labour law

The challenge of personal scope Labour legislation must target its application on particular kinds of work relations. It needs to distinguish, for instance, employment relations from business relations. For the former, labour law provides statutory rights for workers and employees such as a statutory minimum wage or protection from unfair dismissal. In commercial and business relations, however, such as a solicitors provision of professional services to a client or a hairdressers grooming for a customer, these statutory rights will not be applicable: the solicitor and the hairdresser cannot insist on being paid a minimum wage by a client nor complain of unfair dismissal if the customer chooses to go elsewhere for these services. This focus of the statutory protections on employment can be explained by its purpose. Most of this legislation aims to protect employees against the misuse of managerial power and instances of exploitation such as low pay. These problems arise typically in contracts of employment where, as we have seen, workers are vulnerable to exploitation of their weak bargaining position and harsh and unfair exercises of managerial power. Labour laws are therefore directed at contracts of employment as the paradigm that merits regulation. The problem addressed in this chapter is whether these laws should also apply to other kinds of contracts involving the performance of services when the contracts in issue closely resemble contracts of employment.

Labour Law: Freedom of association and the right to organise

Introduction Much of this work so far has been concerned with different ways by which the law is used to empower and protect workers. We have seen how this may be done through the contract of employment, or through regulatory legislation, which now covers a substantial area. Also important as a source of empowerment and protection, however, is the role of trade unions and the process of collective bargaining. By virtue of the latter, trade unions and employers negotiate collective agreements, which regulate the terms and conditions of employment of the workers to whom they apply. These collective agreements may cover both substantive (pay, hours and holidays) and procedural (grievance and disciplinary procedures) issues. Workers covered by a collective agreement will generally be better paid than their counterparts who are not, while workers who are trade union members will be able to call upon their union for support when problems arise at work. But if workers are to enjoy these benefits, they must be free to join trade unions, to take part in their activities and to use their services. That is to say, they must have the right to organise, a right protecting them from sanctions imposed by the state, or from various forms of discrimination by their employer. The right to organise is the first principle of the right to freedom of association, and is considered in this chapter. The right to freedom of association is a right of great subtlety, with at least three dimensions: freedom to be in association with others (in the sense that one may not be restrained or penalised for associating with others); freedom in the association of others (in the sense that individuals should be free collectively to decide how their association is to be organised and governed); and freedom to act in association with others (in the sense that individuals should be free to act collectively to promote the purposes that brought them together).

Dialogue & Debate: Labour, Constitution and A Sense of Measure: A Debate with Alain Supiot

The paper ‘A sense of measure’ that we publish in this section was Alain Supiot’s contribution to a series of workshops organised at the School of Law of the University of Glasgow, in autumn 2009, on the general theme of ‘constitutionalising employment relations’. The underlying idea for the seminars was to ask the question of labour law as a question of constitutional law; to cut across the categorical distinctions that are taken, increasingly, as given between the public sphere and the workplace. The entrenchment of this distinction between public sphere and workplace obscures the fact that significantly similar forms of powerlessness and vulnerability affect both citizens and workers. The emphasis on constitutionalisation marked the attempt to recover an earlier vocabulary of labour law; one that did not undercut the expression in anything but market terms of the creation of value and the stakes of the employment relation. The original impetus for our project was a shared concern that much of what has been written about labour law over the past 10 years or so emphasised a move away from traditional conceptions of its function of redressing asymmetries in the respective positions of employers and workers through protective measures, towards a full-blown market paradigm focused on maximizing flexibility. Together with this development, there seemed to be a growing perception that ‘old ways’ of regulating employment relations had become inappropriate. Instead, there was discussion of the benefits of minimal or ‘light’