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On Labour in Its Relation with Capital Through Law Francqui Chair LABOUR LAW OR SOCIAL COMPETITION LAW? On labour in its relation with capital through law Francqui Chair Lectures Marc RIGAUX Social Law Unit University of Antwerp Antwerp – Oxford – Portland Distribution for the UK: Distribution for the USA and Canada: Hart Publishing Ltd. International Specialized Book Services 16C Worcester Place 920 NE 85 th Ave Suite 300 Oxford OX1 2JW Portland, OR 97213 UK USA Tel: +44 1865 51 75 30 Tel: +1 800 944 6190 (toll free) Fax: +44 1865 51 07 10 Tel: +1 503 287 3093 Fax: +1 503 280 8832 Email: [email protected] Distribution for Switzerland and Germany: Distribution for other countries: Schulthess Verlag Intersentia Publishers Zwingliplatz 2 Groenstraat 31 CH-8022 Zürich BE-2640 Mortsel Switzerland Belgium Tel: +41 1 251 93 36 Tel: +32 3 680 15 50 Fax: +41 1 261 63 94 Fax: +32 3 658 71 21 Labour Law or Social Competition Law? On Labour in Its Relation with Capital Through Law Marc Rigaux www.ua.ac.be/sociaalrecht Translated by Erika Peeters Lay-out by Els Peeters © 2009 Intersentia Antwerp – Oxford – Portland www.intersentia.be ISBN 978-90-5095-942-1 D/2009/7849/52 NUR 825 No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher. TABLE OF CONTENTS LABOUR LAW OR SOCIAL COMPETITION LAW? A JUSTIFICATION OF CONTENT AND STSTRUCTURERUCTURE ......................................................................1 LECTURE 11.... LABOUR LAW AS A CORCORRECTIONRECTION OF THE FREE LABOUR MARKET AND SOSOCIALCIAL COMPETITIONCOMPETITION..........................................5 Introduction...........................................................................................................5 Outline 1. Labour as a commodity of which the price is set by a market mechanism.............................................................................................................5 I. Production within a capitalist system or the dominance of the owners of the means of production ..................................................................5 II. Labour as a commodity dissociated from the person who produces it ......6 III. The (internal and external) labour market generates social competition........................................................................................................6 1. The external labour market ......................................................................7 2. The internal market (within the enterprise or group of enterprises) .....8 3. Degree of employability............................................................................8 4. Social competition in the internal labour market....................................8 IV. Social competition as the principal cause of social exploitation and social exclusion..................................................................................................9 1. Exploitation................................................................................................9 2. Social exclusion..........................................................................................9 Outline 2. The law as an instrument for the institutionalization of the dominance of capital over labour .......................................................................10 I. Individual right of ownership, freedom of enterprise and labour, contractual freedom based on and legitimized by the individual freedom and equality in law of citizens .........................................................10 II. The predominance of the fundamental economic rights over the (fundamental) social rights .............................................................................11 Intersentia v Labour law or social competition law? Outline 3. Labour law and the protection against social competition..............13 I. The correction mechanisms of labour law in general ................................13 II. Interventions in the functioning of the external and internal labour markets.............................................................................................................13 1. The external market ................................................................................13 2. The internal labour market within the enterprise or group of enterprises....................................................................................................14 III. The standardization of pay and working conditions by means of mandatory legal regulations............................................................................15 1. The restriction of contractual freedom – The “incorporatieleer” (theory of incorporation) ............................................................................15 2. The regulation of the terms of employment by mandatory provisions of law..........................................................................................16 IV. Standardization by means of collective bargaining (or right of co- decision)...........................................................................................................17 1. The fundamental social right of collective bargaining ..........................17 2. The supremacy of collective contractual freedom over the individual one..............................................................................................18 3. The collective agreement and the power of co-determination and co-decision as important instruments of standardization..........................19 V. The introduction of a representative system borrowed from politics......20 VI. The preliminary and necessary conditions for social intervention in the free labour market and social competition ..............................................21 1. A political (state controlled) structure capable of restraining the economic power and imposing social corrections .....................................21 2. Citizenship as an indispensable instrument for the individualization of protection for employees...........................................23 3. A social counterforce...............................................................................23 Outline 4. Labour law does not change the economic order, it only corrects it very marginally..................................................................................24 I. Society’s undervaluation of the contribution of labour in the process of production ...................................................................................................24 II. Labour as a negligible factor in the legal specification of the enterprise .........................................................................................................24 1. The contribution of labour does not usually lead to the right to acquire shares in a trading company ..........................................................24 2. The consultative bodies and representative bodies are not part of the company’s managerial and administrative structures .........................25 III. The employment contract was defined in terms of authority ................25 vi Intersentia Table of contents 1. The employment contract, a barrier to the employee’s space of action ...25 2. The employment contract as concretization of the dominance of the economic order over the idea of citizenship..................................................26 Outline 5. Conclusion: from labour law to social competition law ..................27 LECTURE 22.... THE EMPLOYMENT CONCONTRACTRACTRACTT AS A BARRIER TO TTTHETHE EMPLOYEE’S LEGAL INVOLVEMENT IN THE POLICY OF THE ENTERPENTERPRISERISERISE.......................................................................................................31 Introduction.........................................................................................................31 Outline 1. The employment contract or the instrument of access to and ties with the internal labour market ..................................................................32 I. Preliminary reflections ................................................................................32 II. The individual employment contract as an instrument for access to and ties with the internal labour market .......................................................34 The contract of employment withdraws the worker from the external labour market – The prospective worker becomes an employee......................................................................................................34 III. The contract of employment creates a legal tie with the employer and not with the other employees – The contract of employment institutionalizes the alienation of work..........................................................35 IV. The internal labour market is a semi-planned market............................36 V. The model of the internal labour market sometimes gets transposed to a section of the external labour market or to a group of enterprises........36 Outline 2. The contract of employment concretizes the position of labour within the economic order and specifies its objectives .....................................37 I. The acceptance of the dominance of capital over labour...........................37 II. The contract of employment concretizes the objectives of the contribution of labour in the process of production......................................38 III. The contract of employment as a barrier to the employee’s legal involvement in the enterprise’s activities and policy ....................................39 Outline
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