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Contents
History
Main article: History of labour law
Labour law arose in parallel with the Industrial Revolution
as the relationship between worker and employer changed from
small-scale production studios to large-scale factories. Workers sought
better conditions and the right to join (or avoid joining) a labour union,
while employers sought a more predictable, flexible and less costly
workforce. The state of labour law at any one time is therefore both the
product of, and a component of struggles between various social forces.As England was the first country to industrialise, it was also the first to face the often appalling consequences of industrial revolution in a less regulated economic framework. Over the course of the late 18th and early to mid-19th century the foundation for modern labour law was slowly laid, as some of the more egregious aspects of working conditions were steadily ameliorated through legislation. This was largely achieved through the concerted pressure from social reformers, notably Anthony Ashley-Cooper, 7th Earl of Shaftesbury, and others.
Child labour
A serious outbreak of fever in 1784 in cotton mills near Manchester drew widespread public opinion against the use of children in dangerous conditions. A local inquiry presided over by Dr Thomas Percival, was instituted by the justices of the peace for Lancashire, and the resulting report recommended the limitation of children's working hours.[1] In 1802, the first major piece of labour legislation was passed − the Health and Morals of Apprentices Act. This was the first, albeit modest, step towards the protection of labour. The act limited working hours to twelve a day and abolished night work. It required the provision of a basic level of education for all apprentices, as well as adequate sleeping accommodation and clothing.The rapid industrialisation of manufacturing at the turn of the 19th century led to a rapid increase in child employment, and public opinion was steadily made aware of the terrible conditions these children were forced to endure. The Factory Act of 1819 was the outcome of the efforts of the industrialist Robert Owen and prohibited child labour under nine years of age and limited the working day to twelve. A great milestone in labour law was reached with the Factory Act of 1833, which limited the employment of children under eighteen years of age, prohibited all night work and, crucially, provided for inspectors to enforce the law. Pivotal in the campaigning for and the securing of this legislation were Michael Sadler and the Earl of Shaftesbury. This act was an important step forward, in that it mandated skilled inspection of workplaces and a rigorous enforcement of the law by an independent governmental body.
A lengthy campaign to limit the working day to ten hours was led by Shaftesbury, and included support from the Anglican Church.[2] Many committees were formed in support of the cause and some previously established groups lent their support as well.[3] The campaign finally led to the passage of the Factory Act of 1847, which restricted the working hours of women and children in British factories to effectively 10 hours per day.[4]
Working conditions
Men leaving the pit, before the start of World War I. The average life expectancy of a Liverpool mineworker was 30 years in 1900.
A series of further Acts, in 1860 and 1872 extended the legal provisions and strengthened safety provisions. Steady development of the coal industry, increasing association among miners, and increased scientific knowledge paved the way for the Coal Mines Act of 1872, which extended the legislation to similar industries. The same Act included the first comprehensive code of regulation to govern legal safeguards for health, life and limb. The presence of a more certified and competent management and increased levels of inspection were also provided for.
By the end of the century, a comprehensive set of regulations was in place in England that affected all industries. A similar system (with certain national differences) was implemented in other industrializing countries in the latter part of the 19th century and the early 20th century.
Individual labour law
Employment terms
Main articles: Employment contract and At-will employment
The basic feature of labour law in almost every country is that the
rights and obligations of the worker and the employer are mediated
through a contract of employment between the two. This has been the case since the collapse of feudalism. Many contract terms and conditions are covered by legislation or common law. In the US for example, the 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 explicitly prohibited,[a] and, conversely, an employee may quit at any time, for any reason (or for no reason), and is not required to give notice.One example of employment terms in many countries[5] 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 what is expected. It covers items including compensation, holiday and illness rights, notice in the event of dismissal and job description.
The contract is subject to various legal provisions. An employer may not legally offer a contract that pays the worker less than a minimum wage. An employee may not agree to a contract that allows an employer to dismiss them for illegal reasons.[b]
Minimum wage
Main article: Minimum wage
Many jurisdictions define the minimum amount that a worker can be
paid per hour. Australia, Belgium, Brazil, Canada, China, France,
Greece, Hungary, India, Ireland, Japan,South Korea, Luxembourg, the
Netherlands, New Zealand, Paraguay, Portugal, Poland, Romania,
Spain,Taiwan, the United Kingdom, the United States, Vietnam, Germany
(in 2015[6]) and others have laws of this kind.[citation needed] The minimum wage is set usually higher than the lowest wage as 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 industrialised countries has a minimum wage, many developing countries do not.Minimum wages are regulated and stipulated in some countries that lack explicit laws. In Sweden 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.
National minimum wage laws were first introduced in the United States in 1938,[7] Brazil in 1940[8] India in 1948,[citation needed] France in 1950[9] and in the United Kingdom in 1998.[10] In the European Union, 18 out of 28 member states have national minimum wages as of 2011.[11]
Living wage
Main article: Living wage
The living wage is higher than the minimum wage and is designed that a
full-time worker would be able to support themselves and a small family
at that wage.[12]Hours
See also: Eight-hour day
The maximum number of hours worked per day or other time interval are
set by law in many countries. Such laws also control whether workers
who work longer hours must be paid additional compensation.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, reaching as high as 16 hours per day.
The eight-hour movement led to the first law on the length of a working day, passed in 1833 in England. It limited 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.
Germany was the next European country to pass labour laws; Chancellor Otto von Bismarck's main goal was to undermine the Social Democratic Party of Germany. In 1878, Bismarck instituted a variety of anti-socialist measures, but despite this, socialists continued gaining seats in the Reichstag. To appease the working class, he enacted a variety of paternalistic social reforms, which became the first type of social security. In 1883 the Health Insurance Act was passed, 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 followed 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.[citation needed]
In France, the first labour law was voted in 1841. It limited under-age miners' hours. In the Third Republic labour law was first effectively enforced, in particular after Waldeck-Rousseau 1884 law legalising trade unions. With the Matignon Accords, the Popular Front (1936–38) enacted the laws mandating 12 days each year of paid vacations for workers and the law limiting the standard workweek to 40 hours.
Health and safety
Main article: Occupational safety and health
Other labour laws involve safety concerning workers. The earliest English factory law was passed in 1802 and dealt with the safety and health of child textile workers.Discrimination
Main article: Anti-discrimination law
Such laws prohibited discrimination against employees as morally unacceptable and illegal, in particular racial discrimination or gender discrimination.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, the Longjumeau (Essonne) conseil des prud'hommes (labour law court) judged the New Employment Contract 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.[13][14]Child labour
Main article: Child labour
Two girls wearing banners in Yiddish and English with the slogan "Abolish child slavery!!" at the 1909 International Workers' Day parade in New York City
Collective labour law
Main article: Freedom of association
Collective labour law concerns the relationship between employer, employee and trade unions. Trade unions (also "labor unions" in the US) are organisations which generally aim to promote the interests of their members.Trade unions
Main article: Trade union
Trade unions are organized groups of workers who engage in collective bargaining
with employers. Some countries require unions and/or employers to
follow particular procedures in pursuit of their goals. For example,
some countries require that unions poll the membership to approve a
strike or to approve using members' dues for political projects. Laws
may govern the circumstances and procedures under which unions are
formed. They may guarantee the right to join a union (banning employer
discrimination), or remain silent in this respect. Some legal codes
allow unions to obligate their members, such as the requirement to
comply with a majority decision in a strike vote. Some restrict this,
such as "right to work" legislation in parts of the United States.Workplace participation
Main articles: Co-determination and Industrial democracy
A legally binding right for workers as a group to participate in
workplace management is acknowledged in some form in most developed
countries. In a majority of EU member states (for example, Germany,
Sweden, and France) the workforce has a right to elect directors on the
board of large corporations. This is usually called "codetermination"
and currently most countries allow for the election of one third of the
board, though the workforce can have the right to elect anywhere from a
single director, to just under a half in Germany. However, German company law uses a split board system, in which a "supervisory board" appoints an "executive board". Under the Mitbestimmunggesetz 1976,
shareholders and employees elect the supervisory board in equal
numbers, but the head of the supervisory board with a casting vote is a
shareholder representative. The first statutes to introduce board level
codetermination were in Britain, however most of these measures, except
in universities, were removed in 1948 and 1979. The oldest surviving
statute is found in the United States, in the Massachusetts Laws on
manufacturing corporations, introduced in 1919, however this was always
voluntary.In the United Kingdom, similar proposals were drawn up, and a command paper produced named the Bullock Report (Industrial democracy) was released in 1977 by the James Callaghan Labour Party government. Unions would have directly elected half of the board. An "independent" element would also be added. However, the proposal was not enacted. The European Commission offered proposals for worker participation in the "fifth company law directive", which was also not implemented.
In Sweden, participation is regulated through the "Law on board representation". 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, this rises to three members and three substitutes. It is common practice to allocate them among the major union coalitions.
Information and consultation
Workplace statutes in many countries require that employers consult their workers on various issues.Collective bargaining
Main article: Collective bargaining
Collective action
Main articles: Strike action and Picketing (protest)
Strikers gathering in Tyldesley, Greater Manchester in the 1926 General Strike in the U.K.
- 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 for example, among public safety workers, to maintain public order.
Picketing is often used by workers during strikes. They may congregate near 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 law, by more general law restricting demonstrations, or by injunctions on particular pickets. For example, labour law may restrict secondary picketing (picketing a business connected with the company not directly with the dispute, such as a supplier), or flying pickets (mobile strikers who travel to join a picket). Laws may prohibit obstructing others from conducting lawful business; outlaw obstructive pickets allow court orders to restrict picketing locations or behaving in particular ways (shouting abuse, for example).
International labour law
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The extension of the principle of free trade, which induces between nations such a competition that the interest of the workman is liable to be lost sight of and sacrificed in the fierce international race between capitalists, demands that such organizations [unions] should be still further extended and made international.[18]The International Labour Organization and the World Trade Organization have been a primary focus among international bodies for regulating labour markets. Conflicts arise when people work in more than one country. EU law has a growing body of workplace rules.
International Labour Organization
Main articles: International Labour Organization and ILO Conventions
Following World War One, the Treaty of Versailles contained the first constitution of a new International Labour Organization
(ILO) founded on the principle that "labour is not a commodity", and
for the reason that "peace can be established only if it is based upon
social justice".[19]
ILO's primary role has been to coordinate international labour law by
issuing Conventions. ILO members can voluntarily adopt and ratify the
Conventions. For instance, the first Hours of Work (Industry) Convention, 1919
required a maximum of a 48-hour week, and has been ratified by 52 out
of 185 member states. The UK ultimately refused to ratify the
Convention, as did many current EU members, although the Working Time Directive adopts its principles, subject to individual opt-out.[c] ILO's constitution comes from the 1944 Declaration of Philadelphia and under the 1998 Declaration on Fundamental Principles and Rights at Work classified eight conventions[d] as core.These require freedom to join a union, bargain collectively and take action (Conventions No. 87 and 98), abolition of forced labour (29 and 105), abolition of labour by children before the end of compulsory school (138 and 182), and no discrimination at work (No. 100 and 111). Member compliance with the core Conventions is obligatory, even if the country has not ratified the Convention in question. To ensure compliance, the ILO is limited to gathering evidence and reporting on member states' progress, relying on publicity to create pressure to reform. Global reports on core standards are produced yearly, while individual reports on countries who have ratified other Conventions are compiled on a bi-annual or less frequent basis.
World Trade Organization
As one of the only international organisations with real enforcement power through trade sanctions, the WTO has been the target for calls by labour lawyers to incorporate global standards of the International Labour Organization.
Proponents have called for a "social clause" to be inserted into the GATT agreements, for example, by amending Article XX, which provides an exception that allows imposition of sanctions for breaches of human rights. An explicit reference to core labour standards could allow comparable action where a WTO member state breaches ILO standards. Opponents argue that such an approach could undermine labour rights, because industries, and therefore workforces could be harmed with no guarantee of reform. Furthermore, it was argued in the 1996 Singapore Ministerial Declaration 1996 that "the comparative advantage of countries, particularly low-age developing countries, must in no way be put into question."[20] Some countries want to take advantage of low wages and fewer rules as a comparative advantage to boost their economies. Another contested point is whether business moves production from high wage to low wage countries, given potential differences in worker productivity.[21] Since GATT, most trade agreements have been bilateral. Some of these protect core labour standards.[citation needed][e] Moreover, in domestic tariff regulations, some countries give preference to countries that respect core labour rights, for example under the EC Tariff Preference Regulation, articles 7 and 8.[22]
Work in multiple countries
Main article: Conflict of laws
Conflicts of laws (or private international law)
issues arise where workers work in multiple jurisdictions. If a US
worker performs part of her job in Brazil, China and Denmark (a
"peripatetic" worker) an employer may seek to characterise the
employment contract as governed by the law of the country where labour
rights are least favourable to the worker, or seek to argue that the
most favourable system of labour rights does not apply. For example, in a
UK labour law case, Ravat v Halliburton Manufacturing and Services Ltd[23] Ravat was from the UK but was employed in Libya by a German company that was part of Halliburton. He was dismissed by a supervisor based in Egypt.
He was told he would be hired under UK law terms and conditions, and
this was arranged by a staffing department in Aberdeen. Under the UK Employment Rights Act 1996
he would have a right to claim unfair dismissal, but the Act left open
the question of the statute's territorial scope. The UK Supreme Court
held that the principle would be that an expatriate worker, would be
subject to UK rules if the worker could show a "close connection" to the
UK, which was found in Rabat's case.[f]This fits within the general framework in the EU. Under EU Rome I Regulation article 8,[24] workers have employment rights of the country where they habitually work. They may have a claim in another country if they can establish a close connection to it. The Regulation emphasises that the rules should be applied with the purpose of protecting the worker.[25]
It is also necessary that a court has jurisdiction to hear a claim. Under the Brussels I Regulation article 19,[26] this requires the worker habitually works in the place where the claim is brought, or is engaged there.
EU law
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However, the European Court of Justice has recently extended the Treaties provisions via case law. Trade unions have sought to organise across borders in the same way that multinational corporations have organised production globally. Unions have sought to take collective action and strikes internationally. However, this coordination was challenged in the European Union in two controversial decisions. In Laval Ltd v Swedish Builders Union[27] a group of Latvian workers were sent to a construction site in Sweden. The local union took industrial action to make Laval Ltd sign up to the local collective bargaining agreement. Under the Posted Workers Directive, article 3 lays down minimum standards for foreign workers so that workers receive at least the minimum rights that they would have in their home country in case their place of work has lower minimum rights. Article 3(7) says that this "shall not prevent application of terms and conditions of employment which are more favourable to workers". Most people thought this meant that more favourable conditions could be given than the minimum (e.g., in Latvian law) by the host state's legislation or a collective agreement. However the European Court of Justice (ECJ) said that only the local state could raise standards beyond its minimum for foreign workers. Any attempt by the host state, or a collective agreement (unless the collective agreement is declared universal under article 3(8)) would infringe the business' freedom under TFEU article 56. This decision was implicitly reversed by the European Union legislature in the Rome I Regulation, which makes clear in recital 34 that the host state may allow more favourable standards. However, in The Rosella, the ECJ held that a blockade by the International Transport Workers Federation against a business that was using an Estonian flag of convenience (i.e., saying it was operating under Estonian law to avoid labour standards of Finland) infringed the business' right of free establishment under TFEU article 49. The ECJ said that it recognised the workers' "right to strike" in accordance with ILO Convention 87, but said that its use must be proportionately to the right of the business' establishment.
National labour laws
Canada
Main article: Canadian labour and employment law
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China
Main article: Chinese labour law
In the People's Republic of China 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 various aspects of employment. The government-controlled All China Federation of Trade Unions is the sole legal labour union. Strikes are formally legal, but in practice are discouraged.France
Main article: 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 limited 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.[28] The minimum wage was increased by 25%.[29] In 2000, Lionel Jospin's government enacted the 35-hour workweek, reduced 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 favoured contingent work. In 2006, he then attempted to pass the First Employment Contract (CPE) through a vote by emergency procedure, but that was met by students and unions' protests. President Jacques Chirac finally had no choice but to repeal it.India
Main article: Indian labour law
Over fifty national and many more state-level laws govern work in
India. So for instance, a permanent worker can be terminated only for
proven misconduct or habitual absence.[30] In the Uttam Nakate case, the Bombay High Court held that dismissing an employee for repeated sleeping on the factory floor was illegal – the decision was overturned by the Supreme Court of India two decades later. In 2008, the World Bank criticised the complexity, lack of modernisation and flexibility in Indian regulations.[31][32]Iran
Main article: Iranian labour law
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Mexico
Main article: Mexican labor law
Mexican labour law reflects the historic interrelation between the state and the Confederation of Mexican Workers. The confederation is officially aligned with the Institutional Revolutionary Party
(the Institutional Revolutionary Party, or PRI). While the law promises
workers the right to strike and to organize, in practice it is
difficult or impossible for independent unions to organize.Sweden
See also: Swedish labour movement
In Sweden many workplace issues such as working hours, minimum wage
and right to overtime compensation are regulated through collective
bargaining agreements in accordance with the Swedish model of self-regulation, i.e. regulation by the labour market parties themselves in contrast to state regulation (labour laws).[34]Switzerland
Main article: Swiss labour law
The labor law of Switzerland covers all standards governing the employment of some kind. The regulation of the employment by private employers is largely harmonized at the federal level, while public-sector employment still prevails a variety of cantonal
laws. In particular, the civil standardization is distributed to a
variety of laws. Of greater importance, particularly the new Federal Constitution of 1999, the Code of Obligations , the Labour Code as well as in the public sector, the Federal Personnel Act.[35]United Kingdom
Main article: UK labour law
The Factory Acts (first one in 1802, then 1833) and the 1823 Master and Servant Act
were the first laws regulating labour relations in the United Kingdom.
Most 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"[36] and the European Union.[citation needed]
Laws are either Acts of Parliament called Statutes, Statutory
Regulations (made by a Secretary of State under an Act of Parliament) or
Case Law (developed by various courts).The first significant expansion was the Equal Pay Act of 1970. This act was introduced to bring about pay equality for women in the workplace. Since 1997, changes in UK employment law include enhanced maternity and paternity rights,[37] the introduction of a National Minimum Wage[38] and the Working Time Regulations,[39] which covers working time, rest breaks and the right to paid annual leave. Discrimination law has 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.
United States
Main article: United States labor law
An American builder
Professionals, clerical (administrative assistants), technical, and mechanical employees cannot be terminated for refusing to work more than 72 hours in a work week.[41] These ceilings, combined with a competitive job market, often motivate American workers to work more hours. American workers on average take the fewest days off of any developed country.[42]
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 private sector discrimination against certain groups. The Fifth Amendment[43] has an explicit requirement that the Federal Government not deprive individuals of "life, liberty, or property", without due process of law and an implicit guarantee that each person receive equal protection of the law. The Fourteenth Amendment[43] 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 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.
The Age Discrimination in Employment Act of 1967 prohibits employment discrimination based on age with respect to employees 40 years of age or older.
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, labour organizations, training programmes and employment agencies based on race or colour, 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.[44]
See also
- Collective bargaining
- Contingent work
- Employment contract
- Industrial relations
- Journal of Individual Employment Rights
- Labour market flexibility
- Labour movement
- Legal working age and child labour
- Master and Servant Act
- Occupational licensing
- Protective laws (on gender)
- Right-to-work law
- Social security
- Sweat shops
- Swiss labour law
- Union Organizer
- Vicarious liability
- Weekends
- WorkChoices
- Workplace Fairness
Notes
References
- "Civil Rights Act of 1964". findUSlaw.
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
- Blanpain, Prof. R., (University of Leuven, Belgium), Editor. The International Encyclopaedia for Labour Law and Industrial Relations. Retrieved June 26, 2014.
- E McGaughey, 'Behavioural Economics and Labour Law' (2014) SSRN
- 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 978-1-84113-560-1
- Keshawn Walker and Arn Morell, "Labor and Employment: Workplace Warzone", Georgetown University Thesis (2005)
- P. L. Malik's Industrial Law (Covering Labour Law in India) (2 Volumes with Free CD-ROM) (2015 ed.). Eastern Book Company. pp. 1–3656. ISBN 9789351451808.
- Labour Laws - A Primer (2011 ed.). Eastern Book Company. pp. 1–224. ISBN 9789350281437.
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