The Legal Construction Of Personal Work Relations

This book explores the conceptual framework of European employment law, focusing on understanding the law's construction of employment relationships. The book draws on extensive comparative research of the legal architecture of employment relations in national legal systems and EU law to analyse the traditional model of the contract of employment and the difficulties of using the traditional model to frame modern working relationships. The authors then present a new model of the foundations of employment relationships, based on the concept of a personal work nexus, and explore the potential of their model to shape the future development of employment law. Throughout the book, the authors analyse the interaction of domestic and EU employment law, and discuss the possibility of future legal harmonisation in the area. They conclude by exploring the potential for a common framework for European employment law, in the context of broader debates surrounding the harmonisation of European private law.

Forty years ago Amartya Sen introduced to the world a novel approach to the idea of equality: the notion of 'basic capability' as 'a morally relevant dimension' and the claim that we should focus upon equality of basic capabilities ('a person being able to do certain basic things'). These ideas, as developed by Sen and Martha C. Nussbaum, have launched an academic armada now proceeding under the flag of the 'capability approach' (CA). While that flag has ventured far and wide and engaged many areas of inquiry, this volume of essays is the first to explore how CA might shed light upon labour law. The capabilities approach can illuminate our understanding of labour law across three dimensions. Part I looks at the nature of the basic relationship between CA and labour law-do they share common ground or disagree about what is important? Can the CA provide a normative 'foundation' for labour law? Part II goes further by examining the relationship of the CA and other well-established perspectives on labour law, including economics, history, critical theory, restorative justice, and human rights. Part III examines the possible relevance of the CA to a range of specific labour law issues, such as freedom of association, age discrimination in the workplace, trade, employment policy, and sweatshop goods.

Labour law is widely considered to be in crisis by scholars of the field. This crisis has an obvious external dimension - labour law is attacked for impeding efficiency, flexibility, and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the "informal sector". These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. This book responds to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. In this volume the contributors seek to take this body of scholarship seriously and also to move it forward. Its aim is to provide, if not answers which satisfy everyone, intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws - whether they are scholars, practitioners, judges, policy-makers, or workers and employers.

The volume is at the forefront of the academic and policy debates on effective labour regulation, offering innovative approaches to research and policy. It is an interdisciplinary response to the central challenges that face modern labour regulation and draws on contributions by leading experts in a range of disciplines.

This open access book shows how to design labour rights to effectively protect digital platform workers, organise accountability on digital work platforms, and guarantee workers' collective representation and action. It acknowledges that digital work platforms entail enormous risks for workers, and at the same time it reveals the extent to which labour law is in need of reconstruction. The book focusses on the conceptual links – often overlooked in the past – between labour law's categories and its regulatory approaches. By explaining and analysing the wealth of approaches that deconstruct and reconceptualise labour law, the book uncovers the organisational ideas that permeate labour law's categories as well as its policy approaches in a variety of jurisdictions. These ideas reveal a lack of fit between labour law's traditional concepts and digital platform work: digital work platforms rarely behave like hierarchical organisations; instead, they more often function as market organisers. The book provides a fresh perspective for international academic and policy debates on the regulation of digital work platforms, as well as on the purposes and foundations of labour law. It offers a way out of the impasse the debate around labour law classification has reached, by showing what labour law could learn from digital law approaches to platforms – and vice versa. The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

The contract of employment is the central legal institution of modern English employment law. It provides the foundation upon which most statutory employment rights are constructed; it provides a conduit for the implementation of norms negotiated in collective bargaining; and it continues to provide a contractual structure for the terms and conditions of employment for a significant proportion of the working population. The Contract of Employment provides the most ambitious and comprehensive treatise on the theoretical and doctrinal aspects of the English contract of employment in the common law world. Under the general editorship of Professor Mark Freedland, the text has been produced by a team of world leading experts in employment law. Part I examines the theoretical context to the contract of employment, studying its structure and development from a wide variety of theoretical and comparative perspectives. Part II provides an exposition and analysis of the doctrinal aspects of the contract of employment. The coverage of The Contract of Employment is unrivalled in its depth, detail and sophistication. The legal analysis is always informed by a keen sense of the modern labour market context of the contract of employment, and it is sensitive to contemporary challenges such as precariousness, the interaction with migration law, the role of legislation in the contract of employment, and the decline of collective bargaining. It will be the principal reference point for the practitioners, judges, and academics concerned with the contract of employment as a legal category, both nationally and internationally.

The chapters interrogate the legal reasoning by which U.S. courts and administrative agencies are reconstructing labor-capital work relationships in recent employment status decisions. These decisions determine the legal rights of workers by answering the threshold questions, "who is an employee?" and "who is the employer?" Given an apparent postindustrial re-organization of work, the dissertation examines how "bourgeois" ideology, as a distorted form of reasoning that conceals contradictions of class domination in work relationships, inheres in the legal reasoning of employment status decisions. I argue that the 19th century union of master-servant legal relations with contract embedded within the employment contract a contradiction between servitude and equality. Each chapter examines interpretative problems that the contradiction creates in contemporary employment status disputes. Chapter 2 examines decisions by different partisan blocs of the National Labor Relations Board regarding the employment status of graduate student workers, medical residents, and disabled janitors in sheltered workshops-- workers whose relationships embody the contradictory permeation of wage labor into formerly less commodified relations. I argue that the Republican blocs tended to conceal class domination more so than the Democratic blocs, because they engaged the servitude-equality contradiction to reinterpret relational indicia consistent with employer control over the productive process as a status-like authority in a hierarchical, nonmarket social sphere of sympathetic, personal relations. Chapter 3 identifies upfront contractual specification (UCS) as a source of judicial disagreement in employment status disputes. UCS is the phenomenon of including detailed and comprehensive descriptions of the work to be performed in a written contract. I show that the disagreement is rooted in two doctrinal ambiguities in employment that issue from the servitude-equality contradiction: (a) between "contracting" and "production", and (b) between employer contractual rights and entrepreneurial property rights. Chapter 4 examines decisions on the employment status of FedEx delivery drivers. I show that the judges finding the drivers to be independent contractors rather than employees exploited the servitude-equality ambiguities to redefine control in production as equality in contracting, and to redefine FedEx's contractual authority over work relations as entrepreneurial property rights. They constructed the drivers' "entrepreneurial opportunity" so as to conceal a key feature of employment that differentiates it from other contracts--its one-sided open-endedness. They concealed FedEx's bureaucratic coordination of the work by transforming multilateral relations in production among coworkers into relations of production. By redefining legitimate domination and reproducing legal instability in the employment/non-employment distinction, legal ideology in employment status decisions works to re-institutionalize U.S. class relations in new, historically specific, social forms.

Aust Labour & Employment Law