Restructuring Employment Rights

Abstract

CURRENT proposals to extend workers' positive legal rights, within a framework that encourages effective collective bargaining, tend to ignore a fundamental problem. This is whether statutory rights should continue to rest on the foundation of the common law contract of service. Among the central themes that run through the various proposals are the following. (1) The coverage of legislation should be extended to the increasing number of marginal workers, such as part-timers, temporary and casual workers, who at present make up an estimated one-third of the labour force and among whom it is difficult to extend union organisation. (2) Statutory rights should reflect and support collective bargaining arrangements and the freedom of workers to withdraw their labour. (3) Ways must be found to prevent courts and tribunals from undermining statutory rights by restrictive interpretations. (4) The inordinate complexity of labour legislation and the excessive legalism which has been introduced into the disputes settlement process must be reduced. This article argues that these objectives are likely to be frustrated if statutory rights are built on the traditional corner-stone of the common law contract of service, and suggests the outlines of an alternative structure on which to base positive rights. The article is not concerned with the content of those rights, which is a matter for political debate, but with the appropriate form of legislation which is compatible with the above four objectives.