Purpose of regulation
Labour legislation that is adapted to the economic and social challenges
of the modern world of work fulfils three crucial roles:
- it establishes a legal system that facilitates productive individual
and collective employment relationships, and therefore a productive
economy;
- by providing a framework within which employers, workers and their
representatives can interact with regard to work-related issues, it
serves as an important vehicle for achieving harmonious industrial
relations based on workplace democracy;
- it provides a clear and constant reminder and guarantee of fundamental
principles and rights at work which have received broad social acceptance
and establishes the processes through which these principles and rights
can be implemented and enforced.
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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Subject matter of labour legislation
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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Labour law traditions
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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Contemporary challenges of labour legislation
Balancing social protection and equity with the need
for economic efficiency
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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The representation gap, atypical or precarious employment
relationships and gender: Regulating for inclusion
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.
Updated by MB. Approved by AB. Last Updated
10 December 2001.
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