Work, Labour and Employment Law, Rights at Work, Labout Market Regulation, Fairness, Worker's Rights, Human Capability Development Theory, Restorative Regulation, Deliberative Democracy
By desire or necessity, virtually all of us work for a considerable portion of our lives. Work defines our social status, determines our degrees of health and happiness and underpins our sense of self. The productivity, efficiency and economic significance of the work we do, in aggregate terms, are critical to the prosperity of the societies in which we live. Moreover, fair treatment in our workplaces is an important aspect of our individual well-being and a mark of the civility and decency of our communities. Many of us expect the law to ensure fairness in our work relations; but increasingly, legal arrangements governing labour market regulation are not up to the task. In developed economies, legal rules dealing with rights at work vary dramatically in terms of their institutional context, substantive content and breadth of applicability across varying forms of productive or remunerated personal activity. However, a widespread current concern in many jurisdictions, including Canada, is that “rights at work” often hinge upon a worker’s status as an “employee” in a “standard employment contract” and do not inure to the benefit of those personally performing work for others in a broad range of other legal arrangements, and who are thus left vulnerable to exploitation. In the globalized new economy, legal regulation to support or ensure fairness through domestically legislated rights at work has become increasingly problematic. There has also developed a full blown scholarly crisis about the scope and content of labour and employment law, which has engulfed the global academy in the wake of the collapse of the post-war economic, political and social consensus over the welfare state. Finding ways around the apparent problems is not simple or easy – conceptually, economically, socially or politically. In part, this is because the values which underpin rights at work are contested terrain. But in large measure also, because this context requires a re-conceptualization of worker rights along the full gamut of personal work relations with a commensurate effort to understand how such thinking connects to broader labour market regulation. A myriad of legal structures regulate labour markets which are outside the confines of traditional labour and employment law as understood by most lawyers. That wider playing field is provides the background parameters for this paper.
The paper’s purpose is to explore schematically ways to improve the fairness of the legal construction of personal work relations within an integrated, efficient and restorative approach to labour market regulation. Part I sets out the shifting contexts for reflection on rights at work as they have evolved in recent decades. It focuses on changing labour market realities, the collapse of the post-World War II welfare state, the abandonment of the intellectual consensus in which labour and employment law were imbedded, and the new normative tensions over rights at work in the globalized, post-modern economic, social and political environment. It highlights the prevalence of precarious employment, and its attendant devaluation of rights at work and benefits gained through work, as a potential precursor to significant political instability. Part II identifies ways of rethinking fair work relations and improved labour market regulation. It reviews advances in human capability development theory which provide a new normative framework for re-casting work relations and labour market regulation. It outlines the value of a relational understanding of rights in moving beyond the standard employment contract as the primary legal construct for the regulation of personal work relations. It then tackles principles of responsive or restorative regulation as procedural approaches for achieving integrated labour markets which enhance economic competitiveness while respecting fair work relations. Lastly, it contemplates possibilities for stability and social justice through greater rights at and through work, and for competitive but fair labour market regulation. If these ambitions are to be attained, it will involve harnessing both public and private means at national and international levels in the context of deliberative democracy.
Bruce P Archibald, "Rights at Work: Fairness in Personal Work Relations and Restorative Labour Market Regulation" (Paper based on a Presentation at the Rights at Work Conference at the Faculty of Law, Western University, London, Ontario, October 2013) [unpublished].