The rich panoply of sources of labor law: National,
regional, and international
Introduction
With any market, and in a simplified model of the complexities of reality, if labour markets were to
be entirely free of regulation, the outcomes would clearly vary considerably according to a range of
factors.
The importance of labour law:
“The rules governing employment contracts contained in the Dutch Civil Code of 1838 were
extremely meagre. In fact, at that time the Dutch Civil Code did not contain any such rules at all. Only
three articles were dedicated to the hiring of servants and labourers. That was considered adequate
at the time the Dutch Civil Code was drafted. It should be borne in mind that, back then, the
Industrial Revolution was all but unknown in the Netherlands. In the pre-industrial age there was no
working class; the relationship between employer and employee (then the patron and the workman)
was more akin to a patronage, in which context the patron felt responsible for his subordinates.”
19th century developments that made a source for (social) change:
Industrialization
Urbanization
Ideology
Because of industrialization people come to the cities looking for job opportunities, causing
urbanization. Because of places getting busier people develop ideas and an ideology for society.
Changing normative understandings besides social changes. New ideas and new norms, new rules.
The Enlightenment
US Declaration of Independence (1776), US Bill of Rights (1791)
French Revolution (1789)
Human rights appear in a majority of constitutions adopted in the period 1778-1948
How to regulate?
The content and nature of these rights and duties may differ dramatically between countries
and regions, public and private sectors, industry and firm, contemporary times and bygone
centuries, just to name a few. The sources of labour law, though, can be corralled more
readily into categories – collective and individual agreements, statutes, constitutions,
international laws, custom and policy, codes and guidelines. ~ Pittard and Butterworth
1. Constitutions as a direct source of labour law
Specific labour rights
th
13 Amendment of the US Constitution forbids slavery and involuntary servitude
Japanese Constitution guarantees the right of workers to organize and join organizations for the purpose of
bargaining with an employer, to collective bargaining and to collective action
German Constitution grants all Germans the right freely to choose their trade or profession, their place of work
and their place of training. In addition, workers have rights which link their work and conditions; the right to
form associations to safeguard and improve working and economic conditions is guaranteed to everyone and
to all trades and professions.
, Swedish constitution guarantees the right of association and to strike but not the right to bargain collectively.
Constitution of South Afrika includes not only rights to life, privacy and human dignity, but also the right to be
free from slavery servitude or forced labour, right of freedom of association, the right to carry on a trade or
profession.
Indian constitution also embraces such rights as freedom of religion for every citizen in India, and the right to
life. These relate to less labour law than some constitution. Right to equality, right to be free of exploitation,
and right of freedom of association
Constitution of the People’s Republic of Bangladesh also incorporates fundamental rights such as equality,
prohibition of forced labour, freedom of association to grant the form associations or unions and the right to
carry on a trade or profession
Some constitutions are notable for the absence of any express labour rights, hence these
constitutions cannot be looked to as a source of labour rights. Even where countries’ constitutions
provide for labour rights, the rights may not be absolute or they may be subject to limits which could
be placed on them by the Parliament.
Constitutional approaches: making sense of various approaches
Some of the core rights addressed in Constitutions are:
o Right not to be discriminated against
o Freedom from slavery
o Freedom of association Freedom to form and join trade unions
o The right to strike
o The right to bargain collectively
Constitutions and charters or bills of rights
Rights specifically related to labour
o Prohibition of slavery and forced labour
o Right to bargain collectively
o Right to strike
o Freedom to choose an occupation
Rights not specifically related to labour, but relevant to labour
o Equality and non-discrimination (not specific to labour)
o Freedom of association
o Freedom of speech, privacy, etc.
Why regulate?
- Avoid child labour - Avoid dangerous working conditions
- Set health conditions/rules - Minimum wages etc, avoid exploitation of workers
- Avoid slavery
By looking at the past we can notice several parallels with today’s situations, risks, etc.
Rationale for enshrining labour rights in constitutions
Constitutions are generally more difficult to change than ordinary laws passed by the legislations, and
the decision to adopt rights in a Constitution indicates the seriousness with which a country holds or
regards the rights. Why do some countries enshrine labour rights and others don’t?
