Labour legislation that is adapted to the economic and social challenges of the modern world of work fulfils three crucial roles:
But experience shows that labour legislation can only fulfil these functions effectively if it is responsive to the conditions on the labour market and the needs of the parties involved. The most efficient way of ensuring that these conditions and needs are taken fully into account is if those concerned are closely involved in the formulation of the legislation through processes of social dialogue. The involvement of stakeholders in this way is of great importance in developing a broad basis of support for labour legislation and in facilitating its application within and beyond the formal structured sectors of the economy.
When the International Labour Office assists constituents in the process of formulating or reforming labour law, it adopts the basic approach that where labour legislation is appropriately developed, with the support of the parties involved, it not only promotes social justice throughout society, but also has a positive effect on economic performance and contributes to social stability and the reduction of social conflict.
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Labour legislation is widely used both to regulate individual employment relationships and to establish the framework within which workers and employers can determine their own relations on a collective basis, for example through collective bargaining between trade unions and employers or employers' organizations or through mechanisms of worker participation in the enterprise.
The legislative regulation of the individual employment relationship typically entails the enactment of provisions governing the formation and termination of the relationship (that is, the conclusion of contracts of employment, their suspension and termination) and the rights and obligations relating to the different aspects of the relationship (such as the minimum age for admission to employment of work, the protection of young workers, equality at work, hours of work, paid holidays, the payment of wages, occupational safety and health and maternity protection). Provision also has to be made for enforcement procedures and supporting institutions (such as labour inspection services and courts or tribunals).
Regulation of the collective relations of workers and employers typically includes laying down legal guarantees of the right of workers and employers to organize in occupational organizations, to bargain collectively and the right to strike, as well as mechanisms for worker participation at the enterprise level.
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Legislative provisions on these matters already exist in most countries. However, there are considerable differences between countries with regard to the extent and detail of their legislative regulation and the degree to which the various aspects of the matters concerned are left to workers, employers and their organizations to determine by collective agreement or individual employment contract.
In some countries with a common law background (that is, where the law used to be based primarily on judicial decisions and custom, rather than statute law), the basic elements of the employment relationship were traditionally regulated by the common law, with most other matters being left to the parties to regulate by agreement. Examples of these countries include the United Kingdom and many of the Commonwealth countries. However, over the past century or more the legislature in such countries has tended to intervene increasingly broadly in the field of labour law, so that in many cases the most substantive issues are regulated in some detail, and often comprehensively by the legislation. But in certain of these countries there is still a tendency for the legislation to be piecemeal and for it to have to be read, understood and interpreted against a background of common law legal rules which have not been entirely superseded by statutory law. Moreover, in some cases, disputes or claims regarding legal rights and obligations may need to be taken to different courts, depending on whether they arise out of common law or statutory legislation.
In countries with a civil law tradition (which include many French and Spanish-speaking countries), labour law has often, although not always, been set out in systematic and comprehensive labour codes. In most of these countries, labour matters were first regulated in the basic civil code by the provisions governing contracts. Over the years, as other legislation has been adopted on labour-related matters, much of it has been absorbed into and modified by labour codes. But the basic concepts of civil law, and sometimes certain provisions of the civil code, have in many cases continued to be applied to issues arising in the field of labour. Interpretation of the law may therefore require reference to the provisions of both labour and civil law.
Labour law, as comprehensively set forth in labour codes and ancillary legislation, has increasingly come to be seen as an autonomous system of law, and as being independent of the typically more individualist body of civil law. In those countries where labour law has been codified, it has meant that the respective provisions are more readily accessible in comprehensive texts based on unified and overarching concepts that seek to provide greater coherence to the system as a whole.
Much of the developing world has been influenced by one or other of these traditions. In many cases, labour legislation in developing countries was initially adapted from the systems of the pre-independence colonial power. But in most of these countries the legislation has evolved very considerably since independence. In countries influenced by the common law tradition, this evolution has frequently entailed a partial codification, particularly on subjects such as employment relations (including conditions of work), labour or industrial relations and safety and health. Authority to make subordinate regulations has generally been delegated to the Minster responsible for labour matters.
In developing countries which have followed the civil law tradition and which gained independence after the Second World War, comprehensive labour codes were often developed and have frequently needed to be reformed to adapt them to the economic and social realities of recent times. In these countries too, Labour Ministries have been endowed with considerable regulatory powers.
Irrespective of legal tradition, the challenge of labour law reform in recent years has been twofold: firstly, to afford better protection for the basic rights of workers, including their trade union rights; and secondly, to provide for a greater measure of flexibility for the social partners to regulate the employment relationship in a manner that is more conducive to enhancing productivity and economic growth.
In many previously planned economy countries which have undergone the transition to market-based economies, the challenges of legal reform have centred around the need to replace the former state-centred forms of regulation by legislation that strengthens independent and representative institutions capable of engaging in autonomous collective bargaining. This has normally involved adapting excessively invasive regulation and generally lightening the regulatory burden.
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In all countries, every epoch needs to find an acceptable and viable equilibrium in labour law between the functions of social protection and equity and the considerations of economic efficiency. These are the concerns underlying legislative reform, although the decisions taken in practice are often rough and ready in the absence of any generally accepted and clearly defined method of assessing the effects of existing legislative provisions and the changes proposed to them.
Those involved in legislative reform, whether they represent the government, trade unions or employers, as well as the ILO officials and experts concerned, therefore need to endeavour in so far as possible to spell out the consequences of any proposed modification to labour legislation. This entails trying to assess the effects (both costs and benefits) of existing provisions and proposed reforms on the interests of workers and employers, and more broadly on those of society in general in both the short and the long term. In assessing the effects of the various provisions of labour legislation, recognition needs to be given to their role in correcting market failures and advancing the public good. On the other hand, sensitivity is also needed to issues of labour market flexibility to allow for competitive efficiency in a globalized economy. Evidently, the difficulty with any such assessment exercise is that it can rarely be made entirely objectively and accurately, as the necessary information to do so is generally only partially available and is subject to different interpretations.
Tripartite participation in the process of legislative reform and review at the very least guarantees that the various considerations are taken fully into account and their possible effects are assessed from a variety of points of view. Moreover, when the ILO is involved in assisting countries in labour law reform, at their request, it reinforces the commitment to guaranteeing fundamental principles and rights at work in compliance with the ILO Conventions that have been ratified by the countries concerned.
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In his 1999 Report to the International Labour Conference, entitled Decent Work, the Director-General emphasized that the ILO represents all workers. Yet there is clearly a gap between those workers who are represented by trade unions and those who are not (see "Your Voice at Work" (Global Report), ILC, 88th session, Report I(B)), as well as between those who are covered by labour laws and those who are not. The gender dimensions of these forms of exclusion are often particularly compelling.
Those involved in labour law reform therefore have to be sensitive to the needs of such excluded categories of workers, whose situation can normally be improved at least in part by legislative means. With regard to the representation gap, it is important to identify any legal barriers in national legislation to trade union membership and the recognition of trade unions by employers for collective bargaining purposes. Consideration should also be given to legislative approaches that help to foster a climate amenable to increased representation and collective bargaining, with particular reference to provisions that guarantee the right to organize to all categories of workers, afford protection against discrimination of all kinds and set forth the conditions for the recognition of trade unions for collective bargaining purposes.
Particular attention needs to be given throughout the reform process to the promotion of equality for disadvantaged groups, particularly in relation to gender and the representation gap. The proportion of women working in the informal sector, or in various forms of contract labour, atypical or precarious employment, such as home work, is often high, just as the participation rates of women in the formal sector are often lower and they tend to suffer from occupational segregation (in traditionally female jobs) and disadvantage in terms of their conditions of employment (examples include part-time women workers who would prefer full-time employment and those who receive unequal pay for work of equal or similar value). Overcoming gender inequality clearly requires broad policy initiatives that go well beyond the legislative framework, although the legislative dimension is also important. Chapter VII on the elimination of discrimination explores these points more fully, but a gender dimension exists in relation to each of the four categories of rights set out in the ILO Declaration on Fundamental Principles and Rights at Work of 1998.
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1. This chapter is not intended to provide a comprehensive review of this topic, but only to draw attention to several important issues arising in the formulation and review of labour legislation.