Freedom of Association and the Right to Contest: Getting Back to Basics
As worker participation through trade unions has declined across much of the developed world, especially in the US, the UK and Canada, scholars and activists have turned to the concept of "freedom of association" (FOA) -- defined in international labour law as the fundamental right of workers to form and join trade unions of their own choosing -- as a basis for reclaiming a voice for workers in economic governance. Much of this work pursues what we call a strategy of ascent: to what extent does the existing FOA as defined in international and national labour law encompass constitutionalised rights to collective bargaining and to strike, for example? This chapter adopts instead a strategy of descent: does FOA both rest on and help to support more basic rights of concerted protest in the workplace as a prelude to, or even a substitute for, trade union organisation? Drawing upon Philip Pettit's philosophical work on freedom as non-domination, the chapter contends for the recognition of an individual right to contest employer power, free from both state and employer interference. This fundamental labour right, coupled with an associational right or freedom to do jointly with others what one has the right or freedom to do as individuals, provides a normative foundation for protecting informal concerted activity as well as the more familiar trade union forms of FOA. This chapter maps the specific configuration of labour rights in Canada, the UK and the US from this perspective, and identifies some newly-apparent gaps in both the law and the scholarly literature regarding fundamental labour rights.
Individualism and Collectivism in Collective Labour Law
This article examines the concepts of ‘individualism’ and ‘collectivism’ in collective labour law. A popular critique of freedom of association norms characterises such norms as ‘individualist’ or ‘individualistic’. This individualist bias undermines the institutions of collective labour relations. The ‘individualist’ critique is often coupled with the development of an alternative positive account of collective labour law that is based upon a foundation of ‘collectivism’. ‘Collectivist’ labour law encompasses a concern for collective or group rights, rather than rights for individuals; it affirms collective values; and the metric of legitimacy of a legal regime of freedom of association is the extent to which it supports collective bargaining through independent trade unions. On this conventional approach, ‘individualism’ and ‘collectivism’ stand in opposition to each other. This article argues against this dichotomous understanding of ‘individualism’ and ‘collectivism’. A comparative perspective on the ‘right to organise’ supports the view that individual and collective rights can stand in a complementary relation to each other. Furthermore, the union’s right to exclude may sometimes legitimately yield to competing individual rights, such as the right not to be subjected to unjust discriminatory treatment. The important task for labour lawyers is to identify an effective combination of collective and individual rights in order to promote just and decent outcomes in the workplace.
Do Friends and Relatives Really Help in Getting a Good Job?
The available empirical evidence on the wage effect of finding jobs through informal contacts is mixed. This author theorizes that, depending upon the efficiency of formal search methods, the use of personal contacts can lead either to a wage premium or to a wage penalty. Using data from the European Community Household Panel (ECHP), the author finds new evidence to suggest that across many of the countries in the European Union, premiums and penalties to finding jobs through personal contacts are equally frequent and are of about the same size. Such cross-country variation seems to reflect differences in the efficiency of formal search channels. In particular, the wage effect of finding jobs through personal contacts is higher in countries with more labor market intermediaries. Differences-in-differences estimates based on the Italian liberalization of the labor recruitment industry confirm this result.