|
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, workers and their
organizations. As such, it mediates many aspects of the
relationship between
trade unions, employers and employees. In some countries
(such as
Canada), employment laws related to unionised workplaces are
differentiated from those relating to particular individuals. In
most countries however, no such distinction is made. The
labour movement has been instrumental in the enacting of
laws protecting
labour rights in the 19th and 20th centuries.
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' organizations and to keep labour costs low. Employers
costs can increase due to workers organizing to win higher
wages, or by laws emposing 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 may be opposed to. The
state of labour law at any one time is therefore both the
product of, and a component of, the conditions for, struggles
between different interests in society.
Workers' and trade union legal rights in the
United States are relatively restricted, compared to most
European countries. However, the compartmentalization between
different laws systems mean that
illegal aliens, for example, may work in the same sectors as
full
citizens. 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, than they will experience better labor
conditions than they would if they immigrated to the United
States.
Important issues in labour law
There are two broad categories of labour law.
That relating to employees' rights at work, and that governing
the activity of trade unions and other workers' organizations.
Matters relating to employees rights and obligations in
relations to trade unions are best dealt with in the second
category.
Trade unions and
workers' organizations
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' centres are associations not bound by all of
the law relating to trade unions.
Strikes
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
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 [http://www.af-north.org/lordstown.html
1. Some labour law explicitly bans such activity, none
explicitly allows it.
Trade unions and
their members
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.
Rights at work
Child labour
Main article:
Child labour
This section is a
stub. You can help by
expanding it.
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. Both France, Britain and the USA
have a law of this kind, though the figure provided for in the
USA is so low as to sometimes be insufficient for the means of a
worker's subsistence. This explains the
working poor phenomenon. In response to this,
Living wage ordinances have been passed by many city
authorities in the United States, which define a minimum wage
for employees of those authorities, and sometimes for the
employees of companies with which the authority contracts.
These, therefore, constitute law, albeit not law whch restricts
businesses in general.
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.
Minimum wage laws were first introduced
nationally in the
United States in 1938[1],
France in 1950[2],
and in the
United Kingdom in 1999[3].
In the
European Union, 18 out of 25 member states currently have
national minimum wages[4].
[http://claymationnation.com
Come here!]
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.
[5]
[6].
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
[7].
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.
By location
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
[2].
Australian labour law
Main article:
Australian labour law
This section is a
stub. You can help by
expanding it.
British labour law
This article or section may
require
cleanup to meet Wikipedia's
quality standards.
Please help
improve this article or replace this tag with a
more specific message. This article has been tagged since
September 2006. (help,
talk)
Main article:
British labour law
This section is a
stub. You can help by
expanding it.
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 ([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:
[4] and the
Scottish Low Pay Unit's online employment rights pack:
[5]
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
Dismissal
Under United Kingdom law, specifically section
95(1) if the Employment Rights Act 1996, three events can
constitute "Dismissal". These events are where:-
-
The employer terminates the employee's
employment contract 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 1st
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.
Canadian labour law
Main article:
Canadian labour and employment law
This section is a
stub. You can help by
expanding it.
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.
This section is a
stub. You can help by
expanding it.
French labour law
This article or section may
require
cleanup to meet Wikipedia's
quality standards.
Please help
improve this article or replace this tag with a
more specific message. This article has been tagged since
September 2006. (help,
talk)
This section is a
stub. You can help by
expanding it.
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
This section is a
stub. You can help by
expanding it.
United States labor
law
Main article:
United States labor law
This section is a
stub. You can help by
expanding it.
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.
|
