Labour law

Labour law (American English: labor) or employment law is the body of laws, administrative rulings, and precedents which addresses 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.

The function and origins of labour law

Labor law arose due to the demands of workers for better conditions, the right to organize, 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.

Workers' and trade union legal rights in the United States are relatively restricted, compared to most European countries. As a counter-example, if labor laws are more protective in France, due to social, historic and cultural differences, illegal aliens may not be legally contracted. Thus, they have a more difficult time finding jobs and often work in the underground economy. However, if they do manage to get residency or, better yet, be naturalized, then they will experience better labor conditions than they would if they immigrated to the United States, some assert .

Collective labour law

Collective labour law concerns the tripartite relationship between employer, employee and trade unions. Trade unions (or 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.

See also: Trade Union

Strikes

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

Main article: Strike action

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.

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).

Boycotts

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.

Unofficial industrial action

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.

Trade unions and their members

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.

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.

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.

Equal opportunities in recruitment, pay and treatment

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

Minimum wages

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.

Rights to consultation, fair treatment, and against unfair 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..

Hours of labour and holidays

Further information: 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 person 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.

Child labour

Main article: Child labour

International labour law and the International Labour Organisation

See the article International Labour Law or the whole Globalization and Workers' Rights section at the Actrav Distance Learning Project of the International Labour Organization [3].

By location

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.

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.

British labour law

Main article: British labour law

British labour law is more commonly known as United Kingdom employment law or employment rights legislation.

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 ([4]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: [5] and the Scottish Low Pay Unit's online employment rights pack: [6]

This is a list of the key Employment Law Anti-Discrimination legislation many of which have been updated over the years both by further Legislation or Case Law.

Anti-Discrimination Legislation

• Equal Pay Act 1970
• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Protection from Harassment Act 1997
• Public Interest Disclosure Act 1998
• Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551
• Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034
• Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660 (in effect from 2 December 2003)
• Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661 (in effect from 1 December 2003)
• Employment Equality (Age) Regulations 2006, SI 2006/1031

Dismissal

Under United Kingdom law, specifically section 95(1) of the Employment Rights Act 1996, three events can constitute "Dismissal". These events are where:-

• The employer terminates the employee's employment contract with or without notice;
• a time-limited contract expires and is not renewed
• The employer's conduct (e.g. where the employer fundamentally breaches the employee's employment contract) allows the employee to terminate the contract without notice. This is popularly known as "Constructive Dismissal".

Dismissal can be "fair" or "unfair". An employee who has been unfairly dismissed has a right to statutory compensation and further compensation for financial loss sustained in consequence of the dismissal. Such questions are dealt with by employment tribunals.

For a dismissal to be "fair", an employer must give at least one potentially fair reason for the dismissal. Reasons recognised as being fair are stated in s.98(2) Employment Rights Act 1996:

• relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
• relates to the conduct of the employee,
• is retirement of the employee, (effective 1^st October 2006
• is that the employee was redundant,
• Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held,
• is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

The employer must also follow the Statutory Dismissal Procedure (albeit with exceptions) which follows the standard three stage process i.e.:

• Give a statement of grounds for action and invitation to meeting
• Hold the meeting, confirm the decision in writing, note the right of appeal
• If appealed, repeat step 2.

Failure to follow this process will result in an "automatically unfair dismissal". An Employment Tribunal will be required to make an award to the employee and increase this by a minimum of ten to fifty percent - irrespective of the "moral" arguments of their case. A dismissal for a pregnancy related reason is also an automatically unfair dismissal.

French labour law

In France, the first labor laws were the Waldeck Rousseau's 1884 laws. Then, the Popular Front (1936-38) enacted the law mandating 12 days (2 weeks) each year of paid vacations for workers and the law limiting to 40 hours the workweek (outside of overtime) — see Matignon Accords (1936). The Grenelle accords (Accords de Grenelle) negotiated on May 25 and 26 in the middle of the May 1968 crisis, reduced to 44 hours the workweek, created trade union sections in each enterprise (fr:section syndicale d'entreprise, December 27, 1968 law), and increased by 25% the minimum wages (fr:SMIG). Lionel Jospin's government then enacted the 35-hour workweek (instead of 39 hours) in 2000. Five years later, conservative prime minister Dominique de Villepin enacted the New Employment Contract (CNE) law. Addressing the demands of employers asking for more flexibility in the French labour law, the CNE sparked criticism from trade unions and opponents claiming it was favorizing contingent work (or precarity). In 2006, he then had the First Employment Contract (CPE) voted (in emergency procedures), but that was met by students and unions' protests. President Jacques Chirac finally had no choice apart of repealing it, which he unofficially did while simultaneously proclaiming it.

Mexican labour law

Main article: Mexican labor law

United States labor law

Main article: United States labor law

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 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.

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)

See also

• Contingent work
• Legal working age and child labour
• Labour movement
• Master and Servant Act
• Right-to-work law
• Social security
• Sweat shops
• Vicarious liability
• Weekends

External links

• Overview article on Austrian labor law
• 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