• DOI:10.2307/27516510
• Corpus ID: 147394086

The Role of Law in Both Encouraging and Discouraging Labour Organisation Activity

@article{Shaw1997TheRO,
  title={The Role of Law in Both Encouraging and Discouraging Labour Organisation Activity},
  author={J. W. Shaw},
  journal={Labour History},
  year={1997},
  pages={208}
}

• J. Shaw
• Published 1 November 1997
• Economics
• Labour History

Although it now represents some highly evolved and complex processes, labour law is actually concerned with some very basic and central social relations: those between employer and employee; between unions and their members; and between unions, employers and the state. Labour law encompasses significant aspects of the law of contract, the law of torts, constitutional law, administrative law, criminal law and social security law. However, the central issue in any consideration of labour law is the role the state can and should play in relation to the operation of the labour market. As Breen Creighton points out there are broad and often competing philosophies as to the central functions of labour law. These are the 'protective view7 and the 'market view'.11 would first like to define these different approaches and then consider the manner in which each, according to its degree of influence in developing industrial relation legislation and policies, might function to encourage or discourage union activities. In Creighton's summation the 'protective viev/, as the name implies, is based on the premise of inequalities of power between labour and capital. Legislation which is developed from this perspective is intended to alleviate the detrimental effects of this inequality. An integral element of the protective approach is the concept of freedom of association, which requires that workers be allowed to form trade unions and are thus able to use this collective strength as a counter to the power of the employer. The protective approach also presupposes that the state should, on some issues at least, enforce minimum standards, to prevent employers from transgressing acceptable limits of 'social welfare'.2 Of course, how far these objectives are taken has varied from time to time and from state to state. The second view discussed by Creighton, the market view, has gained currency since the 1970s, and reflects a growing belief that economic prosperity can be attained by greater reliance on market forces rather than through state intervention3 - the 'smaller governmenf approach. Inevitably, such an approach will focus critical attention on the level of protection afforded the paid workforce. The market view finds its most extreme expression in the writings of Hayek and Epstein, who suggest that the 'function of the law should merely be to facilitate the individual contract between the seller and the purchaser of labour'.4 This view has obvious resonances with the Federal Government's Workplace Relations Bill which I will discuss in more detail later. However, it must be said that such an extreme approach is based on archaic, individualist notions of absolute freedom of choice and on the denial of the existence of institutional and structural disadvantages. It is a common tactic of 'libertarian theorists' to treat the areas of labour law as part of the 'natural' order of things - a free and unfettered contract entered into by autonomous individuals rather than what it is: a relatively recent construct designed to serve dominant interests.5 As Creighton says: 'it is notable that in practice the kind of deregulation