Aims, Sources and Institutions Flashcards
What is the exchange that occurs when forming an employment contract?
The employee promises to perform work in return for a promise by the employer to pay wages and other types of remuneration.
What are the features that are somewhat unique to an employment contract?
1) Typically a long-term contract for an indefinite period.
2) Is subject to modifications.
3) Less likely to be specific of the work to be performed.
4) Relation of subordination surrounded by implicit mutual expectations of trustworthy behaviour.
Who arguably has more power in the employer/employee relationship?
The employer, who holds the discretion, within limits, to direct labour. The level of subordination creates the risk of abuse of power.
What is the argument against modification?
The market economy may drive employers to treat workers as commodities, but workers should not be treated as such, who can be bought at the cheapest price possible and discarded when no longer needed.
What was Otto Kahn-Freund’s ‘collective laissez faire’ idea?
The principal role of labour law was to establish the mechanism of collective bargaining, but it was not to regulate such matters as wages and hours directly.
When did the need for legislative minimum standards become more compelling?
When the power of trade unions and the effectiveness of collective bargaining to secure good working conditions began to wane in the 1980s.
What is the predominant regulatory technique to govern employment relationships?
Individual civil claims: granting workers legal rights to seek compensation from the employer for breach of statutory standards.
What are the strengths and weaknesses of the individual civil claims technique for compliance?
S: Grants clear legally enforceable rights.
W: Will depend on the willingness of workers to enforce their rights, and is not designed to prevent breaches, but rather compensate for the workers’ losses.
What was the principal regulatory technique for employment used for most of the 20th century?
Collective bargaining between employers and trade unions. Still required intervention by the state to remove the legal obstacles to the establishment of collective bargaining relationships.
At its peak, what was the percentage of the British workforce covered by collective agreements or decisions of Trade Boards?
85%
What did the Report of the Royal Commission on Trade Unions and Employers’ Associations (1968) recommend?
That it should be public policy to promote enterprise or plant-level bargaining. The legal mechanisms for promoting industrial sector bargaining (wage councils) have been dismantled.
What is labour law centrally concerned with?
The resolution of conflict in the workplace.
What does J. Conaghan criticise?
The idea that the most effective means of safeguarding workers’ interests is through collective bargaining, when historically there has been a persistent failure to embrace certain categories of workers (largely populated by women) or advance their interests.
Who is the government’s independent conciliator and what does it do?
The Advisory, Conciliation and Arbitration Service (ACAS). Has a compulsory conciliation role in connection with most individual disputes. Charged with making a public arbitration service available to the parties.
In what ways are Employment (or Industrial) Tribunals different from ordinary courts?
In the past, the ET has sat with three adjudicators (one being an employment judge and two lay members).
Has informal rules of evidence and procedures.
Expected to act less formally, without the requirement for legal representation.
Members of the tribunal can ask questions of witnesses and avoid strict adherence to the legal rules of evidence.
