LABOUR LAW

Labour law, the varied body of law applied to such matters as employment, remuneration,
conditions of work, trade unions, and industrial relations. In its most comprehensive sense, the
term includes social security and disability insurance as well.

Unlike the laws of contract, tort, or property, the elements of labour law are some what less
homogeneous than the rules governing a particular legal relationship. In addition to the
individual contractual relationships growing out of the traditional employment situation, labour
law deals with the statutory requirements and collective relationships that are increasingly
important in mass production societies, the legal relationships between organized economic
interests and the state, and the various rights and obligations related to some types of social
services.

Labour law has won recognition as a distinctive branch of the law within the academic legal
community, but the extent to which it is recognized as a separate branch of legal practice varied
widely depending partly on the extent to which there is a labour code or other distinctive body of
labour legislation in the country concerned, partly on the extent to which there are separate
labour courts or tribunals, and partly on the extent to which an influential group within the legal
profession practice specifically as labour lawyers.

In the early phases of development the scope of labour law is often limited to the most developed
and important industries, to undertakings above a certain size, and to wage earners; as a general
rule, these limitations are gradually eliminated and the scope of the law extended to include
handicrafts, rural industries and agriculture, small undertakings, office workers, and in some
countries, public employees. Thus, a body of law originally intended for the protection of manual
workers in industrial enterprises is gradually transformed into a broader body of legal principles
and standards, which have basically two functions: the protection of the worker as the weaker
party in the employment relationship, and the regulation of the relations between organized
interest groups (industrial relations).
Factors in Labour Law

The general tendency in the modern development of labour law has been the strengthening of
statutory requirements and collective contractual relations at the expense of rights and
obligations created by individual employment relationships. How important these latter remain
depends, of course, on the degree of personal freedom in the given society as well as the
autonomy of both employer and worker allowed by the actual operation of the economy.

In such matters as hours of work, health and safety conditions, or industrial relations, the
statutory or collective elements may define most of the substance of the rights and obligations of
the individual worker, while with respect to such things as the duration of his appointment, his
level and extent of responsibility, or his place in the scale of remuneration, these elements may
provide what is essentially a framework for individual agreement.

Historical development of labour law

The origins of labour law can be traced back to the remote past and the most varied parts of the
world. While European writers often attach importance to the guilds and apprenticeship systems
of the medieval world, some Asian scholars have identified labour standards as far back as the
Babylonian Code of Hammurabi 18th century and the rules for labour management relations in
the Hindu Laws of Manu; Latin American authors point to the Laws of the Indies promulgated
by spain in the 17th century for its New World territories. None of these can be regarded as more
than anticipations, Labour law as it is known today is essentially the child of successive
industrial revolutions from the 18th century onward. It became necessary when customary
restraints and the intimacy of employment relationships in small communities ceased to provide
adequate protection against the abuses incidental to new forms of mining and manufacture on a
rapidly increasing scale at precisely the time when the 18th century Enlightenment, the French
Revolution, and the political forces that they set in motion were creating the elements of the
modern social conscience. It developed rather slowly, chiefly in the more industrialized countries
of western Europe, during the 19th century and attained its present importance, relative maturity,
and worldwide acceptance only during the 20th century.
The first landmark of modern labour law was the British Health and Morals of Apprentices Act
of 1802, sponsored by the elder Sir Robert Peel. Similar legislation for the protection of the
young was adopted in Zürich in 1815 and in France in 1841. By 1848 the first legal limitation of
the working hours of adults was adopted by the Landsgemeinde (citizens’ assembly) of
the Swiss canton of Glarus. Sickness insurance and workers’ compensation were pioneered
by Germany in 1883 and 1884, and compulsory arbitration in industrial disputes was introduced
in New Zealand in the 1890s. The progress of labour legislation outside western Europe,
Australia, and New Zealand was slow until after World War I. The more-industrialized states of
the United States began to enact such legislation toward the end of the 19th century, but the bulk
of the present labour legislation of the United States was not adopted until after the Great
Depression of the 1930s. There was virtually no labour legislation in Russia prior to the October
Revolution of 1917. In India children between the ages of 7 and 12 were limited to nine hours of
work per day in 1881 and adult males in textile mills to 10 hours per day in 1911, but the first
major advance was the amendment of the Factory Act in 1922 to give effect to conventions
adopted at the first session of the International Labour Conference at Washington, D.C., in 1919.
In Japan rudimentary regulations on work in mines were introduced in 1890, but a proposed
factory act was controversial for 30 years before it was adopted in 1911, and the decisive step
was the revision of this act in 1923 to give effect to the Washington Convention on hours of
work in industry. Labour legislation in Latin America began in Argentina in the early years of
the century and received a powerful impetus from the Mexican Revolution, which ended in 1917,
but, as in North America, the trend became general only with the impact of the Great Depression.
In Africa the progress of labour legislation became significant only from the 1940s onward.

The legal recognition of the right of association for trade union purposes has a distinctive history.
There is no other aspect of labour law in which successive phases of progress and regression
have been more decisively influenced by political changes and considerations. The legal
prohibition of such association was repealed in the United Kingdom in 1824 and in France in
1884; there have been many subsequent change in the law and may well be further changes, but
these have related to matters of detail rather than to fundamental principles.

In the United States freedom of association for trade union purposes remained precarious and
subject to the unpredictable scope of the labour injunction, by means of which the courts helped
restrain trade union activity until the 1930s. The breakthrough for trade unionism and collective
bargaining was achieved by the National Labor Relation Act of 1935. In many other countries
the record of progress and regression with respect to freedom of association falls into clearly
distinguished periods separated by decisive political changes. This has certainly been the case
with Germany, Italy, Japan, Spain and much of eastern Europe; there have been many
illustrations of it, and there may be more in the developing world.

Labour codes or other forms of comprehensive labour legislation and ministries of labour were
not introduced until the 20th century. The first labour code was projected in France in 1901 and
promulgated in stages from 1910 to 1927. Among the more advanced formulations affecting the
general condition of labour were the Mexican constitution of 1917 and the Weimar constitution
of Germany of 1919, both of which gave constitutional status to certain general principles of
social policy regarding economic rights. Provisions of this kind have become increasingly
common and are now widespread in all parts of the world.

Departments or ministries of labour responsible for the effective administration of labour

legislation and for promoting its future development were established in Canada in 1900, in
France in 1906, in the United States in 1913, in the United Kingdom in 1916, and in Germany in
1918. They became general in Europe and were established in India and Japan during the during
the following years and become common in Latin America in 1930s.

A labour office was established in Egypt in 1930, but only in the 1940s and 50s did similar
arrangements begin to take root elsewhere in Asia and Africa. Under differing political
circumstances there continue, of course, to be wide variations in the authority and effectiveness
of such administrative machinery.

Elements of Labour Law

The basic subject matter of labour law can be considered under nine broad heads

 Employment
 Individual employment
 Relationships
  Wages and remuneration
 Conditions of work
 Health
 Safety
 Welfare
 Social security
 Trade union
 Industrial relation
 The administration of labour law
 Special provisions for particular occupational or other groups

Employment

Employment considered as a basic concept and category of labour law is a relatively recent
development. Prior to the Great Depression and World War II the emphasis was upon the
prevention or reduction of excessive unemployment rather than upon long- term employment
policy as part of a comprehensive scheme to promote economic stability and growth. The new
approach, arising from changes in political outlook and contemporary economic thought, has
increasingly found expression the creation of employment opportunities as a general objective of
policy.

To this end, legislation has established the necessary legal framework for the forecasting of
labour needs and availability and the provision of employment services including placement,
recruitment, vocational training, and apprenticeship.

Freedom from forced labour, equality of treatment in employment and occupation, and
unemployment benefits may, in a broad sense, be regarded as part of the same general subject.
Individual Employment Relations

The making, modification, and termination of individual employment relations and the resulting
obligations for the parties form a second branch of labour law. It may also involve certain
aspects of promotion, transfer and dismissal procedures and compensation.

Historically speaking, the law on these matters was at one time described as the law of master
and servant. It implied a contractual relation in which one party agreed to be under the control of
the other in the sense that the servant was bound to obey orders not only as to the work that he
would execute but also as to the details of the work and the manner of its execution. In return,
the master had to pay a wage and grant certain minimum conditions for the protection of the
worker. As the law developed, the implied terms and statutory incidents attached to this
relationship concerning such matters as termination of employment, dismissal procedures and
compensation, minimum wages, conditions of work, and social security rights began to limit
freedom of contract. The individual employment relationship continues, however, to be the
subject matter of labour law to which general legal principles, as opposed to statutes and
collective agreements, apply.

Legally speaking, the individual contract of employment plays a more important role in the
Civil-Law countries than in common-law countries.

Wages and Remuneration

The substantive law on wages and remuneration covers such elements as forms and methods of
payment, the protection of wages against unlawful deduction and other abuses, minimum wage
arrangements, the determination of wages, fringe benefits, and in highly sophisticated
economies, incomes policies. The concept of wage regulation as a restraint upon extreme social
evils has gradually been superseded by wage policies as deliberate instruments of positive
management designed to promote economic stability and growth.

Legal requirement concerning the forms of wages and methods of wage payment deal with such
matters as the proper notification of wages in legal tender or by check, the limitation and proper
valuation of payments in kind, the freedom of the workers to dispose of his wages, regularity in
wages payments, the treatment of wages as a privileged, or secured, debt, and restrictions upon
the attachment or assignment of wages.

Minimum – wage regulation takes varied forms; it may, following the pattern originally set by
the British Trades Boards Acts from 1909 onward, provide for wages councils or similar bodies
to fix wages in trades that have no arrangements for collective agreements for collective
agreements and where wages exceptionally low; it may consist, as in Australia and New Zealand,
essentially of arbitration arrangements; or it may, as in the United States under the Fair Labor
Standards acts, provide a statutory rate or criteria for determining such a rate. Statutory
provisions and collective agreements for determining wages may embrace such varied matters as
skill differentials, the elimination of race and sex differentials, payment according to results and
the relationship of wages to productivity, and wage guarantees for agreed periods of time. Fringe
benefits, such as bonuses payable in varying contingencies, are typically a matter for collective
agreements. Incomes policies remain the subject of much controversy. Their general purpose,
sometimes embodied in legislation and sometimes expressed in collective agreements or
statements of government policy, is to restrain inflationary pressures resulting from wage
increases unrelated to increased productivity and to do this in a manner that promotes a fairer
distribution of income.

Conditions of work

The conditions of work involve hours, rest periods, and vacations; the prohibition of child
labour and regulation of the employment of young persons; and special provisions concerning
the employment of women. This part of the law originated in legislation for the protection of
children, young persons, and women against the worst evils of the Industrial Revolution. It
originally dealt particularly with such matters as admission to employment, night work, and
excessive hours, but the elements of its content and their relative importance were wholly
transformed during the 20th century.

As economic and educational progress and changed social habits limited child labour in the
industrialized countries and increasingly in the modernized sectors of developing economies, the
special concern of labour law with regard to the young shifted to such areas as vocational
guidance and training, career planning and advancement, and medical protection.

As employment opportunities for women became more varied and responsible, there was a
similar shift in emphasis from protective legislation—which came to be regarded as
discriminatory, since it tended to limit such opportunities—to legal guarantees of equal pay and
equal employment, coupled with adequate maternity protection and the provision of facilities to
enable women with family responsibilities to continue to be employed. In the late 20th and early
21st centuries, similar, though less comprehensive, accommodations to male employees (e.g., the
provision of paid or unpaid paternity leave) were increasingly common.

Whereas previously any statutory limitation of the hours of work of adult males was regarded as
being highly questionable, except in mines where it had been introduced on safety grounds, in a
society of much increased leisure it has now become a general practice to fix maximum hours of
work by statute or collective agreement. In many countries the eight-hour day has been
superseded by the 40-hour week as the statutory maximum for a wide range of occupations, and
collective agreements providing for substantially shorter working hours are not uncommon. The
details of hours regulation, whether by statute or collective agreement, include such matters as
exceptions and adjustments necessary for continuous shift working. In addition, such regulations
cover the extensions permitted for preparatory, complementary, and intermittent work; the
special rules for force majeure (work of absolute necessity), accident, maintenance, and repair
work; and the limitation, authorization, and remuneration of overtime.

The principle of resting one day of the week, sanctioned as it is by religious practice in many
places, was widely incorporated in legislation at an early date; the lengthening of this weekly rest
through the creation of the five-day week has been strongly influenced by statutory requirements
and collective agreements.

Legislation granting annual holidays with pay and collective agreements providing for such
holidays are almost entirely a development of the mid-20th century but are increasingly
common; moreover, there is a marked tendency for the minimum annual holiday to be increase
Complex questions may arise concerning the qualifying period of service required
for entitlement, breaks in the continuity of service, the calculation of average or normal
remuneration for the purpose of the holidays, the extent to which holidays may be divided, and
the liability for holidays where there has been a change of employer.

Health, Safety, and Welfare

Such general matters as occupational health and accident prevention regulation and services;
special regulations and services; special regulations for hazardous occupations such as mining,
construction, and dock work; and provisions concerning such health and safety risks as poisons,
dangerous machinery, dust, noise, vibration, and radiation constitute the health, safety, and
welfare category of labour law.

The efforts of organized safety movements and the progress of occupational medicine have
produced of occupational medicine have produced comprehensive occupational health and
accident prevention services and regulation no longer limited to a few specially acute risks but
covering the full range of dangers arising from modern industrial processes. Major developments
include increased concern with the widespread use of chemicals and increasing provision for
welfare facilities related to employment, including feeding, rest, recreation, and transport
facilities.

Social Security

Social security ranges from basic employers liability for occupational accidents to
comprehensive schemes that includes income security in the form of sickness, unemployment,
retirement, employment injury, maternity, family, invalidity, and survivors benefits and medical
care. As with other aspects of labour law, a progression from the particular to the general has
been characteristic of the development of social security legislation. By the time of World War I,
workers compensation schemes were general in industrialized and industrializing countries, but
they were highly restrictive in their provisions for specific cases.
Pension insurance was part of Otto von Bismarcks legacy to Germany, but elsewhere there was
little more to be found than pension funds for the privileged or noncontributory pensions for the
aged. Great Britain had been the pioneer in health and unemployment insurance. But social
insurance remained a pragmatic experiment limited to a few countries advanced in both
economic development and social policies. The coverage was limited to specific risks for certain
categories of protected persons. Its object was to protect the worker against the hazards of life for
which preindustrial societies provide by some form of community or family responsibility, but
the approach was piecemeal and was limited to the most – manageable cases of acute hardship.
Eventually, the impact of Great Depression and World War II in the industrial countries and the
increasingly apparent inadequacy of earlier forms of community responsibility in developing
countries transformed the position.

The concept of social security, first given statutory expression in the United States in 1935 and in
New Zealand in 1938, superseded that of social insurance, and the 1943 Beveridge Report
developed it even further to provide a basic income for all in need of such protection, in addition
to providing comprehensive medical care.

The concept has continued to broaden since that time, and social security has found increasing
acceptance, though necessarily with varying degrees of practical application, in countries in the
most varied stages of economic development.

Trade Unions and Industrial Relations

A number of complex legal relationships fall under the heading of industrial relations, including
the legal status, rights, and obligations of trade unions and employers organizations, collective
bargaining and collective agreements, the representation of employees at plant and enterprise
level and the prevention and settlement of various types of labour disputes in general and of
strikes and lockouts in particular.
Regarding such matters as the representative character and capacity of trade unions, their legal
status, the obligation to recognize and bargain with them, the enforceability of collective
agreements, the scope of activities permitted to trade unions, and their obligations in contract and
tort, there are wide variations both in the extent to which they are subject to legal rules and in the
content of such rules.

In the United States, for instance, there is a considerable body of law on these subjects, the most
important enactments being the National Labor Relations Act of 1947. In the United Kingdom
the law has hitherto remained marginal to most of these trade union issues, except for legislation
of 1871, 1875, and 1906, which had provided certain “immunities” for trade unions, particularly
in connection with trade disputes.

The administration of labour law

Another feature of labour law involves the organization and functioning of administrative
authorities such as labour departments, labour inspection services and other organs of
enforcement. Administration of the law also encompasses the operation of labour courts and
other bodies for the settlement of grievances arising from existing contracts or collective
agreements and of industrial disputes arising between labour and management.

The principal problem in many countries is to relate the process of labour administration and its
special intimacy with labour and management to overall economic and social planning in a
manner that gives proper weight to social considerations in economic policy.

This problem falls mostly outside the scope of labour law, but its solution does depend in part on
the extent to which labour law provides for and secures effective standards of administration.

Special categories of workers

Labour law includes many provisions for particular occupational or other groups. These
sometimes appear as special parts of a general code, special legislation, or provisions thet limit
specific legislative provisions with regard to particular groups. These special provisions are
common and important in mining, transportation, commercial occupations, and agriculture.
Cutting across these broad sectors of economic activity are the traditional legal distinctions made
in some countries between blue – collar workers and salaried employees and certain newer
distinctions, such as that between employees who earn annual salaries and have rights of tenure
and persons with no such rights engaged and remunerated on a monthly, weekly, or even daily
basis

The rules of different systems

Among the distinctive elements of labour law that reflect the political, socioeconomic, and
legal differences among countries are variations in the relative importance of statutory regulation
and collective agreements, the prevalence of national or industrial collective agreements, the
prevalence of national or industrial collective agreements as opposed to company or plant
agreements, the importance in certain countries of arbitral awards, and the extent to which labour
law has been affected by a country’s constitutional structure, especially with regard to judicial
review of constitutionality of legislation and judicial interpretation of constitutional powers,
limitations, and guarantees.

In the United Kingdom, for instance, the tradition has been to allow a maximum of initiative and
freedom to employer’s and worker’s organizations in the regulation of their mutual relations and
the determination of conditions of work. Most countries on the Continent, by contrast, have
detailed legislative provisions on these matters.

In the United Kingdom, however, the reluctance to legislate is becoming less marked; there is
now legislation concerning industrial training and discrimination in employment, formerly
matters for collective agreement; and legislation concerning collective bargaining, safeguards
against unfair dismissal, and certain trade union practices was enacted in the late 1970s and early
1980s. in virtually all the developing countries the absence of an established tradition of
collective bargaining and the importance of the part played by the state in economic development
have placed a premium on legislative action.

Unifying Tendencies
The range of possible solutions for similar problems often consists of variations of details on a
limited number of options, and certain number of options, and certain common elements, often
expressed in identical or almost identical texts, recur in the law of different countries.

These elements derive partly from the legislation of other countries but increasingly from the
influence on the law of the international standards evolved by International Labour Organization
(ILO).