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.
Analysis: The Agenda 2007 Proposals: Evolution or Revolution?
On 10 February 2004 the Commission published its proposal for the financial perspective 2007-2013. A week later it adopted the third report on economic and social cohesion. These two documents form the basis of the so-called ‘Agenda 2007 reforms’. They will be the greatest challenge for the enlarged EU after the intergovernmental conference, since they will determine the financial basis for EU policy-making until the middle of the next decade. The Agenda 2007 proposals certainly hint at courageous reforms, because they place a previously unheard-of emphasis on performance and quality. Under the proposals, structural operations should generate value for money, and the funds should focus on projects which generate added value at a European level. Overall the Commission’s proposals point in the right direction, because they balance, on the one hand, solidarity for the new Member States and weak regions in the old Member States with, on the other hand, investments in future tasks. Moreover, they constitute a paradigm shift. For the first time, the Common Agricultural Policy will not be the dominant expenditure category. Now it is up to the Member States to examine the proposals politically and find a compromise between sometimes very divergent interests. It is to be hoped that, during the debate over expenditure limits and division of funds, national interests do not outweigh European interests.