Labour law


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

Labour law (also called labor law or employment 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 unionized 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. Employment standards are social norms (in some cases also technical standards) for the minimum socially acceptable conditions under which employees or contractors will work. Government agencies (such as the former U.S. Employment Standards Administration) enforce employment standards codified by labour law (legislative, regulatory, or judicial).

Contents

Labour law history

Labour law arose due to the demands for workers for better conditions, the right to organize, or, alternatively, the right to work without joining a labour union, 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 restrictions on their free choice of whom to hire. Workers' organizations, such as trade unions, can also transcend purely industrial disputes, and gain political power. 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

Contract of employment

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 to protect employees, and facilitate a fluid labour market. In the U.S. for example, majority of state laws allow for employment to be "at will", meaning the employer can terminate an employee from a position for any reason, so long as the reason is not an illegal reason, including a termination in violation of public policy.[1]

One example in many countries[2] is the duty to provide written particulars of employment with the essentialia negotii (Latin for essential terms) to an employee. This aims to allow the employee to know concretely what to expect and is expected; in terms of wages, holiday rights, notice in the event of dismissal, job description and so on. An employer may not legally offer a contract in which the employer pays the worker less than a minimum wage. An employee may not for instance agree to a contract which allows an employer to dismiss them 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.[3]

Minimum wage

There may be law stating the minimum amount that a worker can be paid per hour. Australia, Belgium, Brazil, Canada, China, France, Greece, Hungary, India, Ireland, Japan, Korea, Luxembourg, the Netherlands, New Zealand, Paraguay, Portugal, Poland, Romania, 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. 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.

  1. Minimum wages are regulated and stipulated also in some countries that lack specific laws. In Sweden, for instance, minimum wages are negotiated between the labour market parties (unions and employer organisations) through collective agreements that also cover non-union workers and non-organised employers.

Minimum wage laws were first introduced nationally in the United States in 1938,[4] Brazil in 1940 [5] India in 1948, France in 1950,[6] and in the United Kingdom in 1998.[7] In the European Union, 18 out of 25 member states currently have national minimum wages.[8]

Working time

Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of industrialism 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.[9] 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 labour 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. 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, while 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 labour law was voted in 1841. However, it limited only under-age miners' hours, and it was not until the Third Republic that labour 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).

  • Lochner v. New York, 198 U.S. 45 (1905), a notorious, and now defunct case by the US Supreme Court that regulation of working time (for bakeries) to limit workers to a 10-hour day.

Health and safety

Other labour 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

This clause means that discrimination against employees is morally unacceptable and illegal, on a variety of grounds, in particular racial discrimination or sexist discrimination.

Unfair dismissal

Convention no. 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 (labour law court) judged the New Employment Contract (CNE) contrary to international law, and therefore "illegitimate" and "without any juridical value". The court considered that the two-years period of "fire at will" (without any legal motive) was "unreasonable", and contrary to convention no. 158, ratified by France.[10][11]

Child labour

Two girls wearing banners in Yiddish and English with the slogan "Abolish child slavery!!" at the 1909 May Day 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."[12]

Collective labour law

Collective labour law concerns the tripartite relationship between employer, employee and trade unions. Trade unions, sometimes called "labour unions"

Trade unions

Some countries require unions to follow particular procedures before taking certain actions. For example, some countries require that unions ballot the membership to approve a strike or to approve using 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

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, teachers, 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 to gain more control over the workplace environment, or simply have to work less [1]. Some labour law explicitly bans such activity, none explicitly allows it.

Pickets

Picketing is a tactic which is often used by workers during strikes. They may congregate outside the business they are striking against to make their presence felt, increase worker participation, and dissuade (or prevent) strike breakers from entering the workplace. In many countries, this activity is restricted 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 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

Workplace consolation 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

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, as well as Scandinavian countries (e.g. Sweden). 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 the United Kingdom, 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 British company law requires no split in the boards of directors, unions would have directly elected the management of the company. Furthermore, rather than giving 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 UK 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.

In Sweden, this is regulated through the 'Law on board representation' (Lagen om styrelserepresentation). The law covers all private companies with 25 or more employees. In these companies, workers (usually through unions) have a right to appoint two board members and two substitutes. If the company has more than 1,000 employees, three members and three substitutes are appointed by workers/unions. It is common practice that seats are divided between representatives from the major union coalitions.

International labour law

One of the crucial concerns of workers and those who believe that labour rights are important,[who?] is that in a globalizing 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 Organization 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[who?] 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 incentivized to invest in education, training, and skills in their workforce to obtain a comparative advantage. Government initiative is 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 Organization (see below), nor the European Union takes this view.

International Labour Organization

The International Labour Organization (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.[13] 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

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 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.[citation needed]

National labour law

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. 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"[citation needed] and the European Union.[citation needed] There are three sources of Law: Acts of Parliament called Statutes, Statutory Regulations (made by a Secretary of State under an 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. 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.

5.2 Management Tricks

A trick of modern management is to stalk the junior employees which leads to alarm, harassment or distress - a criminal act.

Management get around this by a claim that an employee's behaviour was unacceptable; despite being put under stress by the said manager. See Constructive Dismissal.

Canadian labour law

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

Chinese labour law

Labour Law in the People's Republic of China has become a very hot issue with the soaring numbers of factories and the fast pace of urbanization. The basic labour laws are the Labour Law of People's Republic of China (promulgated on 5 July 1994) and the Law of the People's Republic of China on Employment Contracts (Adopted at the 28th Session of the Standing Committee of the 10th National People's Congress on June 29, 2007, Effective from January 1, 2008). The administrative regulations enacted by the State Council, the ministerial rules and the judicial explanations of the Supreme People's Court stipulate detailed rules concerning the various aspects of the employment relationship. Labour Union in China is controlled by the government through the All China Federation of Trade Unions, which is also the sole legal labour union in Mainland China. Strike is formally legal, but in fact is discouraged.

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 25 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.[14] The minimum wage was also increased by 25%.[15] In 2000 Lionel Jospin's government then enacted the 35-hour workweek, down from 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.

German labour law

Indian labour law

Iranian labour law

Japanese labour law

Mexican labour law

Mexican labour law governs the process by which workers in Mexico may organize labour unions, engage in collective bargaining, and strike. Current labour law reflects the historic interrelation between the state and the Confederation of Mexican Workers, the labour confederation officially aligned with the Institutional Revolutionary Party (the Institutional Revolutionary Party, or PRI), which ruled Mexico under various names for more than seventy years. While the law, on its face, promises workers the right to strike and to organize, in practice it makes it difficult or impossible for independent unions to organize while condoning the corrupt practices of many existing unions and the employers with which they deal.

Swedish labour law

Swedish labour law is from an international perspective comparatively 'thin'. This is because many of the issues and areas that in other countries are regulated through state or federal law, e.g. working hours, minimum wage and right to overtime compensation, in Sweden instead are regulated through collective agreements between trade union and employer organisation representatives.

United States labour law

An American builder

The Fair Labor Standards 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 just like US citizens, without requirement of work permits. Despite the 40-hour standard maximum work week,[16][citation needed] 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.[citation needed] There are exceptions to the 24-hour break period for certain harvesting employees, like those involved in harvesting grapes, tree fruits and cotton. Professionals, clerical (administrative assistants), technical, and mechanical employees cannot be terminated for refusing to work more than 72 hours in a work week.[citation needed] These high-hour ceilings, combined with a competitive job market, often motivate American workers to work more hours than required. American workers consistently take fewer vacation days than their European counterparts, and on average take the fewest days off of any developed country.[17]

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, but several laws, particularly the Civil Rights Act of 1964, limit the ability of the private sector to discriminate against certain classes in employment. The Fifth Amendment[18] 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[19] 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[20] is the principal federal statute with regard to employment discrimination prohibiting unlawful employment discrimination by public and private employers, labour organizations, training programmes and employment agencies based on race or colour, religion, sex, and national origin. Retaliation is also prohibited by Title VII[21] 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[22] cases and granted Title VII[23] plaintiffs the right to jury trial.

The National Labor Relations Act, enacted in 1935 as part of the New Deal legislation, guarantees workers the right to form unions and engage in collective bargaining. This legislation and its subsequent amendments are also key elements of U.S. labour law.

See also

Syndicalism.svg Organized labour portal

Notes

  1. ^ For example, an employee's refusal to violate law or an employee's assertion of rights.
  2. ^ e.g. In the European Union, Directive 91/533
  3. ^ In the US, under the National Labor Relations Act, a worker has no right to organize where he is considered a manager, see NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001)
  4. ^ "History of Federal Minimum Wage Rates Under the Fair Labor Standards Act, 1938 - 1996". Department of Labor. March 31, 2006. http://www.dol.gov/esa/minwage/chart.htm. 
  5. ^ Senado.gov.br
  6. ^ "Minimum wage (guaranteed)". European Foundation for the Improvement of Living and Working Conditions. March 31, 2006. http://www.eurofound.eu.int/emire/FRANCE/MINIMUMWAGEGUARANTEED-FR.html. 
  7. ^ "National Minimum Wage". dti. March 31, 2006. http://www.dti.gov.uk/er/nmw/nmwhist.htm. 
  8. ^ Eurostat (2005): Minimum Wages 2005: Major Differences between EU Member States (PDF)
  9. ^ Child Labor and the Division of Labor in the Early English Cotton Mills
  10. ^ (French) "Un contrat en CNE jugé contraire au droit international". Reuters. April 28, 2006. http://today.reuters.fr/news/newsArticle.aspx?type=topNews&storyID=2006-04-28T165412Z_01_TOU860781_RTRIDST_0_OFRTP-FRANCE-EMPLOI-CNE-TRIBUNAL-20060428.XML. Retrieved 2006-05-05. 
  11. ^ (French) "Bernard Thibault au plus haut". L'Express. April 28, 2006. http://www.lexpress.fr/info/quotidien/actu.asp?id=3591. Retrieved 2006-05-05. [dead link]
  12. ^ "The State of the World's Children 1997". UNICEF. http://www.unicef.org/sowc97/report/. Retrieved 2007-04-15. 
  13. ^ See the article International Labor Law or the whole Globalization and Workers' Rights section at the Actrav Distance Learning Project of the International Labor Organization, ilo.org
  14. ^ Section syndicale d'entreprise (French) December 27, 1968 law
  15. ^ SMIG (French)
  16. ^ Deskinlawfirm.com
  17. ^ Infoplease.com
  18. ^ Finduslaw.com
  19. ^ Finduslaw.com
  20. ^ Finduslaw.com
  21. ^ Finduslaw.com
  22. ^ Finduslaw.com
  23. ^ Finduslaw.com

Further reading

  • Stephen F. Befort and John W. Budd, Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus (2009) Stanford University Press
  • Norman Selwyn, Selwyn's Law of Employment (2008) Oxford University Press
  • Simon Honeyball, Honeyball and Bowers' Textbook on Employment Law (2008) Oxford University Press
  • 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 9781841135601
  • Keshawn Walker and Arn Morell, "Labor and Employment: Workplace Warzone", Georgetown University Thesis (2005)

External links


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