Labour law

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Labour law concerns the inequality of bargaining power between employers and workers.

Labour law (also known as employment or labor law) is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In Canada, employment laws related to unionised workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made. However, there are two broad categories of labour law. First, collective labour law relates to the tripartite relationship between employee, employer and union. Second, individual labour law concerns employees' rights at work and through the contract for work. The labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries. Labour rights have been integral to the social and economic development since the industrial revolution.

Labour law history

Labour law arose due to the demands of workers for better conditions, the right to organise, and the simultaneous demands of employers to restrict the powers of workers' many organizations and to keep labour costs low. Employers costs can increase due to workers organizing to win higher wages, or by laws imposing costly requirements, such as health and safety or equal opportunities conditions. Workers' organisations, such as trade unions, can also transcend purely industrial disputes, and gain political power - which some employers may oppose. The state of labour law at any one time is therefore both the product of, and a component of, struggles between different interests in society.

Individual labour law

Individual labour law deals with peoples rights at work place on their contracts for work. Where before unions would be major custodians to workplace welfare, there has been a steady shift in many countries to give individuals more legal rights that can be enforced directly through courts.

Contract of employment

Main article: Employment contract

The basic feature of labour law in almost every country is that the rights and obligations of the worker and the employer between one another are mediated through the contract of employment between the two. This has been the case since the collapse of feudalism and is the core reality of modern economic relations. Many terms and conditions of the contract are however implied by legislation or common law, in such a way as to restrict the freedom of people to agree to certain things. An employer may not legally offer a contract in which he pays his worker less than a minimum wage. An employee may not for instance agree to a contract which allows an employer to dismiss him unfairly. There are certain categories that people may simply not agree to because they are deemed categorically unfair. However, this depends entirely on the particular legislation of the country in which the work is.

Minimum wage

Main article: Minimum wage

There may be law stating the minimum amount that a worker can be paid per hour. Australia, Canada, China, Belgium, France, Greece, Hungary, Ireland, Japan, Korea, Luxemburg, the Netherlands, New Zealand, Portugal, Poland, Spain, Taiwan, the United Kingdom, the United States and others have laws of this kind. The minimum wage is usually different from the lowest wage determined by the forces of supply and demand in a free market, and therefore acts as a price floor. Those unable to command the minimum wage due to a lack of education, experience or opportunity would typically work in the underground economy, if at all. Each country sets its own minimum wage laws and regulations, and while a majority of industrialized countries has a minimum wage, many developing countries have not.

Minimum wage laws were first introduced nationally in the United States in 1938, France in 1950, and in the United Kingdom in 1999. In the European Union, 18 out of 25 member states currently have national minimum wages.

Working time

See also: Eight-hour day

Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of capitalism and the introduction of machinery, longer hours became far more common, with 14-15 hours being the norm, and 16 not at all uncommon. Use of child labour was commonplace, often in factories. In England and Scotland in 1788, about two-thirds of persons working in the new water-powered textile factories were children. The eight-hour movement's struggle finally led to the first law on the length of a working day, passed in 1833 in England, limiting miners to 12 hours, and children to 8 hours. The 10-hour day was established in 1848, and shorter hours with the same pay were gradually accepted thereafter. The 1802 Factory Act was the first labour law in the UK.

After England, Germany was the first European country to pass labor laws; Chancellor Bismarck's main goal being to undermine the Social Democratic Party of Germany (SPD). In 1878, Bismarck instituted a variety of anti-socialist measures, but despite this, socialists continued gaining seats in the Reichstag. The Chancellor, then, adopted a different approach to tackling socialism. In order to appease the working class, he enacted a variety of paternalistic social reforms, which became the first type of social security. The year 1883 saw the passage of the Health Insurance Act, which entitled workers to health insurance; the worker paid two-thirds, and the employer one-third, of the premiums. Accident insurance was provided in 1884, whilst old age pensions and disability insurance were established in 1889. Other laws restricted the employment of women and children. These efforts, however, were not entirely successful; the working class largely remained unreconciled with Bismarck's conservative government.

In France, the first labor law was voted in 1841. However, it limited only under-age miners' hours, and it was not until the Third Republic that labor law was effectively enforced, in particular after Waldeck-Rousseau 1884 law legalizing trade unions. With the Matignon Accords, the Popular Front (1936-38) enacted the laws mandating 12 days (2 weeks) each year of paid vacations for workers and the law limiting to 40 hours the workweek (outside of overtime).

Health and safety

Main article: Occupational safety and health

Other labor laws involve safety concerning workers. The earliest English factory law was drafted in 1802 and dealt with the safety and health of child textile workers.

Anti-discrimination

Main article: Anti-discrimination law

This clause means that discrimination is morally unacceptable, in particular racial discrimination or sexist discrimination.

Unfair dismissal

Main articles: Unfair dismissal and Wrongful dismissal

Convention n°158 of the International Labour Organization states that an employee "can't be fired without any legitimate motive" and "before offering him the possibility to defend himself". Thus, on April 28, 2006, after the unofficial repeal of the French First Employment Contract (CPE), the Longjumeau (Essonne) conseil des prud'hommes (labor law court) judged the New Employment Contract (CNE) contrary to international law, and therefore "unlegitimate" and "without any juridical value". The court considered that the two-years period of "fire at will" (without any legal motive) was "unreasonnable", and contrary to convention n°158, ratified by France.

Child labour

Main article: Child labour

Two girls wearing banners with slogan "Abolish child slavery!!" from the May 1 1909 labour parade in New York City

Child labour is the employment of children under an age determined by law or custom. This practice is considered exploitative by many countries and international organizations. Child labour was not seen as a problem throughout most of history, only becoming a disputed issue with the beginning of universal schooling and the concepts of labourers and children's rights. Child labour can be factory work, mining or quarrying, agriculture, helping in the parents' business, having one's own small business (for example selling food), or doing odd jobs. Some children work as guides for tourists, sometimes combined with bringing in business for shops and restaurants (where they may also work as waiters). Other children are forced to do tedious and repetitive jobs such as assembling boxes, or polishing shoes. However, rather than in factories and sweatshops, most child labour occurs in the informal sector, "selling on the street, at work in agriculture or hidden away in houses — far from the reach of official inspectors and from media scrutiny."

Collective labour law

Collective labour law concerns the tripartite relationship between employer, employee and trade unions. Trade unions, sometimes called "labour unions" are the form of workers' organisation most commonly defined and legislated on in labour law. However, they are not the only variety. In the United States, for example, workers' centers are associations not bound by all of the laws relating to trade unions.

Trade unions

Main article: Trade union

The law of some countries place requirements on unions to follow particular procedures before certain courses of action are adopted. For example, the requirement to ballot the membership before a strike, or in order to take a portion of members' dues for political projects. Laws may guarantee the right to join a union (banning employer discrimination), or remain silent in this respect. Some legal codes may allow unions to place a set of obligations on their members, including the requirement to follow a majority decision in a strike vote. Some restrict this, such as the 'right to work' legislation in some of the United States.

Strikes

Main article: Strike action

Strikers gathering in Tyldesley in the 1926 General Strike in the U.K.

Strike action is the weapon of the workers most associated with industrial disputes, and certainly among the most powerful. In most countries, strikes are legal under a circumscribed set of conditions. Among them may be that:

• The strike is decided on by a prescribed democratic process. (Wildcat strikes are illegal).
• Sympathy strikes, against a company by which workers are not directly employed, may be prohibited.
• General strikes may be forbidden by a public order.
• Certain categories of person may be forbidden to strike (airport personnel, health personnel, police or firemen, etc.)
• Strikes may be pursued by people continuing to work, as in Japanese strike actions which increase productivity to disrupt schedules, or in hospitals.

A boycott is a refusal to buy, sell, or otherwise trade with an individual or business who is generally believed by the participants in the boycott to be doing something morally wrong. Throughout history, workers have used tactics such as the go-slow, sabotage or just not turning up en-masse in order to gain more control over the workplace environment, or simply have to work less [2]. Some labour law explicitly bans such activity, none explicitly allows it.

Pickets

Main article: Picketing

Picketing is a tactic which is often used by workers during strikes. They may congregate outside the business which they are striking against, in order to make their presence felt, increase worker participation and dissuade (or prevent) strike breakers from entering the place of work. In many countries, this activity will be restricted both by labour law, by more general law restricting demonstrations, or sometimes by injunctions on particular pickets. For example, labour law may restrict secondary picketing (picketing a business not directly connected with the dispute, such as a supplier of materials), or flying pickets (mobile strikers who travel in order to join a picket). There may be laws against obstructing others from going about their lawful business (scabbing, for example, is lawful); making obstructive pickets illegal, and, in some countries, such as Britain, there may be court orders made from time to time against pickets being in particular places or behaving in particular ways (shouting abuse, for example).

Workplace involvement

Main article: Industrial democracy

Workplace consulation statutes exist in many countries, requiring that employers consult their workers on issues that concern their place in the company. Industrial democracy refers to the same idea, but taken much further. Not only that workers should have a voice to be listened to, but that workers have a vote to be counted.

Co-determination

Main article: Co-determination

Originating in Germany, some form of co-determination (or Mitbestimmung) procedure is practised in countries across continental Europe, such as Holland and the Czech Republic. This involves the rights of workers to be represented on the boards of companies for whom they work. The German model involves half the board of directors being appointed by the company trade union. However, German company law uses a split board system, with a 'supervisory board' (Aufsichtsrat) which appoints an 'executive board' (Vorstand). Shareholders and unions elect the supervisory board in equal number, except that the head of the supervisory board is, under co-determination law, a shareholder representative. While not gaining complete parity, there has been solid political consensus since the Helmut Schmidt social democrat government introduced the measure in 1976.

In Britain, the similar proposals were drawn up, and a command paper produced named the Bullock Report (Industrial democracy). This was released in 1977 by the James Callaghan Labour government. This proposal involved a similar split on the board, but its effect would have been even more radical. Because U.K. company law requires no split in the boards of directors, unions would have directly elected the management of the company. Furthermore, rather than gives shareholders the slight upper hand as happened in Germany, a debated 'independent' element would be added to the board, reaching the formula 2x + y. However, no action was ever taken as the U.K. slid into the winter of discontent. This tied into the European Commission's proposals for worker participation in the 'fifth company law directive', which was also never implemented.

International labour law

One of the crucial concerns of workers and those who believe that labour rights are important, is that in a globalising economy, common social standards ought to support economic development in common markets. However, there is nothing in the way of international enforcement of labour rights, with the notable exception of labour law within the European Union. At the Doha round of trade talks through the World Trade Organisation one of the items for discussion was the inclusion of some kind of minimum standard of worker protection. The chief question is whether, with the breaking down of trade barriers in the international economy, while this can benefit consumers it can also make the ability of multinational companies to bargain down wage costs even greater, in wealthier Western countries and developing nations alike. The ability of corporations to shift their supply chains from one country to another with relative ease could be the starting gun for a "regulatory race to the bottom", whereby nation states are forced into a merciless downward spiral, not only slashing tax rates and public services with it but also laws that in the short term cost employers money. Countries are forced to follow suit, on this view, because should they not foreign investment will dry up, move places with lower "burdens" and leave more people jobless and poor. This argument is by no means uncontested. The opposing view suggests that free competition for capital investment between different countries increases the dynamic efficiency of the market place. Faced with the discipline that markets enforce, countries are incentivised to invest in education, training and skills in their workforce in order to obtain a comparative advantage. Government initiative will be spurred, because rational long term investment will be perceived as the better choice to increasing regulation. This theory concludes that an emphasis on deregulation is more beneficial than not. That said, neither the International labour organisation, nor the European Union takes this view.

International Labour Organisation

Main article: International Labour Organisation

File:ILO logo.svg

The International Labour Organisation (ILO), whose headquarters are in Geneva, is one of the oldest surviving international bodies, and the only surviving international body set up at the time of the League of Nations following the First World War. Its guiding principle is that "labour is not a commodity" to be traded in the same way as goods, services or capital, and that human dignity demands equality of treatment and fairness in dealing within the workplace. The ILO has drawn up numerous conventions on what ought to be the labour standards adopted by countries party to it. Countries are then obliged to ratify the Conventions in their own national law. However, there is no enforcement of this, and in practice most conventions are not agreed to, even if they are adhered to.

European labour law

Main article: European labour law

The European Working Time Directive limited the maximum length of a working week to 48 hours in 7 days, and a minimum rest period of 11 hours in each 24 hours. Like all EU Directives, this is an instrument which requires member states to enact its provisions in national legislation. Although the directive applies to all member states, in the UK it is possible to "opt out" of the 48 hour working week in order to work longer hours. In contrast, France has passed more strict legislation, limiting the maximum working week to 35 hours (but optional hours are still possible). The controversial Directive on services in the internal market (aka "Bolkestein Directive") was then passed in 2006.

National labour law

Australian labour law

Main article: Australian labour law

Canadian labour law

Main article: Canadian labour and employment law

In Canadian law, 'labour law' refers to matters connected with unionised workplaces, while 'employment law' deals with non-unionised employees.

British labour law

Main article: British labour law

The Factory Acts (first one in 1802, then 1833) and the 1832 Master and Servant Act were the first laws regulating labour relations in the United Kingdom. Their titles give a very effective summary of how the employment relationship was viewed up until the late 1950s. The vast majority of employment law before 1960 was based upon the Law of Contract. Since then there has been a significant expansion primarily due to the "equality movement" and the European Union. There are three sources of Law: Acts of Parliament called Statutes, Statutory Regulations (made by a Secretary of State under and Act of Parliament) and Case Law (developed by various Courts).

The first significant modern day Employment Law Act was the Equal Pay Act of 1970 although as it was a somewhat radical concept it did not come into effect until 1972. This act was introduced as part of a concerted effort to bring about equality for women in the workplace. Despite the fact that it has now been in place for more than thirty years, women in the UK still earn an average wage that is considerably below the equivalent wage for men. Since the election of the Labour Government in 1997, there have been many changes in UK employment law. These include enhanced maternity and paternity rights, the introduction of a National Minimum Wage and the Working Time Directive which covers working time, rest breaks and the right to paid annual leave. Discrimination law has also been tightened, with protection from discrimination now available on the grounds of age, religion or belief and sexual orientation as well as gender, race and disability.

Advice on employment law in the UK is available from a variety of sources, including the ACAS helpline (0845 7474747) or, for workers in Scotland, the Scottish Low Pay Unit Employment Rights Advice Line (0845 6023802). Advice on sex discrimination at work is available from the Equal Opportunities Commission ([3] or 0845 6015901). There are also a number of useful sources of information on the internet, such as the Department of Trade and Industry website and the Scottish Low Pay Unit's online employment rights pack.

French labour law

In France the first labour laws were Waldeck Rousseau's laws passed in 1884. Between 1936 and 1938 the Popular Front enacted a law mandating 12 days (2 weeks) each year of paid vacation for workers, and a [[law limiting the work week to 40 hours, excluding overtime. The Grenelle accords negotiated on May 25th and 26th in the middle of the May 1968 crisis, reduced the working week to 44 hours and created trade union sections in each enterprise. The minimum wage was also increased by 25%. In 2000 Lionel Jospin's government then enacted the 35-hour workweek, down from instead of 39 hours. Five years later, conservative prime minister Dominique de Villepin enacted the New Employment Contract (CNE). Addressing the demands of employers asking for more flexibility in French labour laws, the CNE sparked criticism from trade unions and opponents claiming it was lending favour to contingent work. In 2006 he then attempted to pass the First Employment Contract (CPE) through a vote by emergency procedure, but that it was met by students and unions' protests. President Jacques Chirac finally had no choice but to repeal it.

Mexican labour law

Main article: Mexican labor law

United States labor law

Main article: United States labor law

An American builder

In the United States, employers generally accepted the 8-hour day as of 1912. The Wages and Hours Act of 1938 set the maximum standard work week to 44 hours, and in 1950 this was reduced to 40 hours. The green cards entitle legal immigrants to work permits, although an illegal alien may often work in the States because of compartmentalization of various bureaucratic entities. Despite the 40-hour standard maximum work week, some lines of work require more than 40-hours to complete the tasks of the job. For example, if you prepare agricultural products for market you can work over 72 hours a week, if you want to, but you cannot be required to. If you harvest products you must get a period of 24 hours off after working up to 72 hours in a seven-day period. There are exceptions to the 24 hours break period for certain harvesting employees, like those involved in harvesting grapes, tree fruits and cotton. Professionals, clerical (administrative assistants), technical, and mechanical employees can not be terminated for refusing to work more than 72 hours in a workweek.

The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The private sector is not directly constrained by the Constitution. The Fifth Amendment has an explicit requirement that the Federal Government not deprive individuals of "life, liberty, or property," without due process of the law and an implicit guarantee that each person receive equal protection of the laws. The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. Equal protection limits the State and Federal governments' power to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group, like a race, religion or sex. Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty," like the right to free speech, or a property interest.

The Age Discrimination in Employment Act of 1967 prohibits employment discrimination based on age with respect to employees 40 years of age or older. This Act was created to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment because in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs; the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave; and the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

Title VII of the Civil Rights Act is the principal federal statute with regard to [employment discrimination] prohibiting unlawful employment discrimination by public and private employers, [labor organizations], training programs and employment agencies based on race or color, religion, sex, and national origin. Retaliation is also prohibited by Title VII against any person for opposing any practice forbidden by statute, or for making a charge, testifying, assisting, or participating in a proceeding under the statute. The Civil Rights Act of 1991 expanded the damages available to Title VII cases and granted Title VII plaintiffs the right to jury trial.

See also

• Collective bargaining
• Contingent work
• Industrial relations
• Legal working age and child labour
• Labour movement
• Master and Servant Act
• Right-to-work law
• Social security
• Sweat shops
• Unfair labor practice
• Union Organizer
• Vicarious liability
• Weekends
• WorkChoices
• Workplace Fairness

Further reading

• Keith Ewing, Aileen McColgan and Hugh Collins, Labour Law, Cases, Texts and Materials (2005) Hart Publishing
• Simon Deakin and Gillian Morris, Labour Law (2005) Hart Publishing ISBN-13 9781841135601
• Keshawn Walker and Arn Morell, "Labor and Employment: Workplace Warzone", Georgetown University Thesis (2005)

External links

• Labour Legislation page from 1911 Encyclopedia.org, Encyclopedia Brittanica's 1911 edition
• Overview article on Austrian labor law
• Overview article on Georgian labor law at Getsadze & Pateishvili Law Office
• Summary of Dutch labour law in English
• Other articles on Austrian labor law (mainly in German language)
• Labor and Worklife Program at Harvard Law School
• Repression Against the IWW
• FindUSLaw United States Employment Law
• California Labor Code
• Foreign Countries - Labor, Employment & Income Data, Policy & Law Research Guide from the Mississippi State University Libraries