The Nature of Labour Law
What is labour law?
• The law governing ‘work’ in a market setting: ‘wage labour’,
‘employment’
• Labour law protects the individual worker and provides
means for the resolution of disputes between workers and
employers.
• Labour law also provides the framework for workers to
organise into groups for their mutual protection: trade unions.
• Labour law is one of the means by which the law constitutes and
governs the institutions of a capitalist economy: the labour market;
the enterprise.
Discussing work in an economic setting – generally work governed by a
contract
- Critical legal concept: concept of contract of employment: defines
the boundaries of labour law as a subject; helps us see where labour
law ends and where other areas of law begin (private law, family law,
company law)
- NOT the law about all forms of work ut it is the law about work in
the market setting – in labour market setting and critical relationship
to consider = bilateral relationship bw the worker and the employer
Law governing worker and employer – what is its function?
- To protect the individual worker in a relationship which is unequal – in
a market economy, a capitalist society, employers or capital have
power. Employment contract is fundamentally unequal one (or at least
asymmetrical). Labour law is there to protect the individual worker.
And also labour law is there to provide means of dispute resolution in
the context of this fundamentally conflicting relationship, to provide
basis for co-operation in the contract, specialist law (not just private
law).
- Provides framework for workers to organize into groups for mutual
protection – trade unions o Makes it possible for trade unions to exist –
collectivists of workers. In market economy, capital has power but
workers have collective power. There is very little power for workers
that isn’t collective.
The immediate subject-matter of labour law consists of the 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.
- Constitute and govern key institutions in labour economy. Labour
law doesn’t just take market economy as a given, but helps to
constitute it. Can there be a market without law? Bit of a hypothetical
, question about a society like ours – we see the coexistence of law and
the market wherever we look. Yes there are markets where there is no
law – there are some markets that depend entirely on trust. Or there
are markets where the law plays no role, often because transactions
are illegal. BUT maket involving scale/scope involves third party to
contract (state) to enforce property rights, enforce contracts, and the
labour market is no different.
- The employer is not normally a natural person, not normally an
individual human being. Normally a corporate person or a public sector
institution. And people who exercise power inside organizations
(bosses, supervisors, managers) are not legally the employer.
o Employment contract gives employer many reserved powers to order
workers to do things – to control them, subordinate them… so power of
employer = not simply natural fact but something the law helps to create
by endowing powers on employers.
- Law also defines transaction at the heart of labour law – sale of labour
power for wages or salary. Labour law defines what it is the worker is
selling and what the worker is selling is NOT their finished labour o
Worker is NOT selling labour embodied in piece of work – selling
themselves for period of time. Putting themselves at disposal of
another – employment contract creates on one side power to give
orders, on the other side a duty to obey. But more than that, labour
law also protects the worker by inserting terms into the employment
contract for the workers’ protection.
- Many rights derive from statute – right to living wage, right to limit
on working time, right not to be unfairly dismissed, right to be a trade
union member without being discriminated against, right to strike
within limits (collective action in defence of collective economic
interests). All these things labour law inserts into contract for worker’s
protection o And in doing so, helps to create a labour market
Sources of Labour Law
• Private law: many labour law rules are derived from
the common law of contract and tort, and they tend to
support employer power or ‘managerial prerogative’
• Many labour law rules derive from tort and contract.
Ex: employer’s power to give orders we call a contract term.
Employer has a contractual power to give orders and that is
inherent in every employment contract. A work relationship
in which the person buying labour services is NOT an
employer but a client buying a product – NOT an
employment contract. Employment contract inherently
creates some power to give orders and if not there, will NOT
be an employment contract
• Common law clothes this power in the language of
contract – contractual right to give orders. Paradoxical:
contractual right beyond contract. Contract gies employer
, open-ended power – doesn’t need to constantly re-negotiate
all aspects of work contract every hour of every day
(managerial prerogative)
• But, this private law foundation has been overlaid with
statutory protection: laws governing wages, terms and
conditions of employment, termination of employment,
discrimination, freedom of association, collective industrial
action
• Contract of employment in statutory framework:
means different thing as private law. Nor what a tax lawyer
means. Words have contextual meaning
• Statutory layer of regulation has been laid – minimum
wage, unfair dismissal, equality of work, equal pay… hardly
any of these derive from common law. Common law doesn’t
know notion of a living wage or freedom of association for
workers – because common law in this sense is highly
individualist. Regards collectivists as unlawful conspiracies –
took statute to provide rights for workers to a living wage,
max week, unfair dismissal protection, equality at work..
• And here we see democracy influencing the law –
nearly all these rights derive form period initially when
suffrage was extended to working class. Wasn’t until early
decades of 20th century that UK was democracy in this sense
– democratic push against laws that coerced and oppressed
labour led to labour law
• And, labour law recognises some extra-legal influences
as potential sources of protecting and coordinating norms, in
particular collective bargaining between trade unions and
employers
• Collective bargaining: unions and employers
negotiating together terms and conditions of employment,
wages, hours. Collective contract of a kind between
employers or group of employers and on the other hand
group of workers. This collective agreement can provide a
source of norms. It can insert terms into the employment
contract, NOT in same way as statute but can insert them for
workers’ benefit.
• As university lecturer, nearly all terms governing
pensions and working time derive from collective agreement
between UCU and University, my employer, who inserts
terms without negotiation.
• Sources outside of formal egal text flow into labour law
– understand how that happens (like employer
documentation, collective agreements)
Distinctive features of labour law regulation
The 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.
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. 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.
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 (see below).
Private law as a source of labour law
The 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’).
Collective bargaining
What is labour law?
• The law governing ‘work’ in a market setting: ‘wage labour’,
‘employment’
• Labour law protects the individual worker and provides
means for the resolution of disputes between workers and
employers.
• Labour law also provides the framework for workers to
organise into groups for their mutual protection: trade unions.
• Labour law is one of the means by which the law constitutes and
governs the institutions of a capitalist economy: the labour market;
the enterprise.
Discussing work in an economic setting – generally work governed by a
contract
- Critical legal concept: concept of contract of employment: defines
the boundaries of labour law as a subject; helps us see where labour
law ends and where other areas of law begin (private law, family law,
company law)
- NOT the law about all forms of work ut it is the law about work in
the market setting – in labour market setting and critical relationship
to consider = bilateral relationship bw the worker and the employer
Law governing worker and employer – what is its function?
- To protect the individual worker in a relationship which is unequal – in
a market economy, a capitalist society, employers or capital have
power. Employment contract is fundamentally unequal one (or at least
asymmetrical). Labour law is there to protect the individual worker.
And also labour law is there to provide means of dispute resolution in
the context of this fundamentally conflicting relationship, to provide
basis for co-operation in the contract, specialist law (not just private
law).
- Provides framework for workers to organize into groups for mutual
protection – trade unions o Makes it possible for trade unions to exist –
collectivists of workers. In market economy, capital has power but
workers have collective power. There is very little power for workers
that isn’t collective.
The immediate subject-matter of labour law consists of the 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.
- Constitute and govern key institutions in labour economy. Labour
law doesn’t just take market economy as a given, but helps to
constitute it. Can there be a market without law? Bit of a hypothetical
, question about a society like ours – we see the coexistence of law and
the market wherever we look. Yes there are markets where there is no
law – there are some markets that depend entirely on trust. Or there
are markets where the law plays no role, often because transactions
are illegal. BUT maket involving scale/scope involves third party to
contract (state) to enforce property rights, enforce contracts, and the
labour market is no different.
- The employer is not normally a natural person, not normally an
individual human being. Normally a corporate person or a public sector
institution. And people who exercise power inside organizations
(bosses, supervisors, managers) are not legally the employer.
o Employment contract gives employer many reserved powers to order
workers to do things – to control them, subordinate them… so power of
employer = not simply natural fact but something the law helps to create
by endowing powers on employers.
- Law also defines transaction at the heart of labour law – sale of labour
power for wages or salary. Labour law defines what it is the worker is
selling and what the worker is selling is NOT their finished labour o
Worker is NOT selling labour embodied in piece of work – selling
themselves for period of time. Putting themselves at disposal of
another – employment contract creates on one side power to give
orders, on the other side a duty to obey. But more than that, labour
law also protects the worker by inserting terms into the employment
contract for the workers’ protection.
- Many rights derive from statute – right to living wage, right to limit
on working time, right not to be unfairly dismissed, right to be a trade
union member without being discriminated against, right to strike
within limits (collective action in defence of collective economic
interests). All these things labour law inserts into contract for worker’s
protection o And in doing so, helps to create a labour market
Sources of Labour Law
• Private law: many labour law rules are derived from
the common law of contract and tort, and they tend to
support employer power or ‘managerial prerogative’
• Many labour law rules derive from tort and contract.
Ex: employer’s power to give orders we call a contract term.
Employer has a contractual power to give orders and that is
inherent in every employment contract. A work relationship
in which the person buying labour services is NOT an
employer but a client buying a product – NOT an
employment contract. Employment contract inherently
creates some power to give orders and if not there, will NOT
be an employment contract
• Common law clothes this power in the language of
contract – contractual right to give orders. Paradoxical:
contractual right beyond contract. Contract gies employer
, open-ended power – doesn’t need to constantly re-negotiate
all aspects of work contract every hour of every day
(managerial prerogative)
• But, this private law foundation has been overlaid with
statutory protection: laws governing wages, terms and
conditions of employment, termination of employment,
discrimination, freedom of association, collective industrial
action
• Contract of employment in statutory framework:
means different thing as private law. Nor what a tax lawyer
means. Words have contextual meaning
• Statutory layer of regulation has been laid – minimum
wage, unfair dismissal, equality of work, equal pay… hardly
any of these derive from common law. Common law doesn’t
know notion of a living wage or freedom of association for
workers – because common law in this sense is highly
individualist. Regards collectivists as unlawful conspiracies –
took statute to provide rights for workers to a living wage,
max week, unfair dismissal protection, equality at work..
• And here we see democracy influencing the law –
nearly all these rights derive form period initially when
suffrage was extended to working class. Wasn’t until early
decades of 20th century that UK was democracy in this sense
– democratic push against laws that coerced and oppressed
labour led to labour law
• And, labour law recognises some extra-legal influences
as potential sources of protecting and coordinating norms, in
particular collective bargaining between trade unions and
employers
• Collective bargaining: unions and employers
negotiating together terms and conditions of employment,
wages, hours. Collective contract of a kind between
employers or group of employers and on the other hand
group of workers. This collective agreement can provide a
source of norms. It can insert terms into the employment
contract, NOT in same way as statute but can insert them for
workers’ benefit.
• As university lecturer, nearly all terms governing
pensions and working time derive from collective agreement
between UCU and University, my employer, who inserts
terms without negotiation.
• Sources outside of formal egal text flow into labour law
– understand how that happens (like employer
documentation, collective agreements)
Distinctive features of labour law regulation
The 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.
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. 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.
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 (see below).
Private law as a source of labour law
The 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’).
Collective bargaining
