Labour law traditions

Legislative provisions on these matters already exist in most countries. However, there are considerable differences between countries with regard to the extent and detail of their legislative regulation and the degree to which the various aspects of the matters concerned are left to workers, employers and their organizations to determine by collective agreement or individual employment contract.

In some countries with a common law background (that is, where the law used to be based primarily on judicial decisions and custom, rather than statute law), the basic elements of the employment relationship were traditionally regulated by the common law, with most other matters being left to the parties to regulate by agreement. Examples of these countries include the United Kingdom and many of the Commonwealth countries. However, over the past century or more the legislature in such countries has tended to intervene increasingly broadly in the field of labour law, so that in many cases the most substantive issues are regulated in some detail, and often comprehensively by the legislation. But in certain of these countries there is still a tendency for the legislation to be piecemeal and for it to have to be read, understood and interpreted against a background of common law legal rules which have not been entirely superseded by statutory law. Moreover, in some cases, disputes or claims regarding legal rights and obligations may need to be taken to different courts, depending on whether they arise out of common law or statutory legislation.

In countries with a civil law tradition (which include many French and Spanish-speaking countries), labour law has often, although not always, been set out in systematic and comprehensive labour codes. In most of these countries, labour matters were first regulated in the basic civil code by the provisions governing contracts. Over the years, as other legislation has been adopted on labour-related matters, much of it has been absorbed into and modified by labour codes. But the basic concepts of civil law, and sometimes certain provisions of the civil code, have in many cases continued to be applied to issues arising in the field of labour. Interpretation of the law may therefore require reference to the provisions of both labour and civil law.

Labour law, as comprehensively set forth in labour codes and ancillary legislation, has increasingly come to be seen as an autonomous system of law, and as being independent of the typically more individualist body of civil law. In those countries where labour law has been codified, it has meant that the respective provisions are more readily accessible in comprehensive texts based on unified and overarching concepts that seek to provide greater coherence to the system as a whole.

Much of the developing world has been influenced by one or other of these

traditions. In many cases, labour legislation in developing countries was initially adapted from the systems of the pre-independence colonial power. But in most of these countries the legislation has evolved very considerably since independence. In countries influenced by the common law tradition, this evolution has frequently entailed a partial codification, particularly on subjects such as employment relations (including conditions of work), labour or industrial relations and safety and health. Authority to make subordinate regulations has generally been delegated to the Minster responsible for labour matters.

In developing countries which have followed the civil law tradition and which gained independence after the Second World War, comprehensive labour codes were often developed and have frequently needed to be reformed to adapt them to the economic and social realities of recent times. In these countries too, Labour Ministries have been endowed with considerable regulatory powers.

Irrespective of legal tradition, the challenge of labour law reform in recent years has been twofold: firstly, to afford better protection for the basic rights of workers, including their trade union rights; and secondly, to provide for a greater measure of flexibility for the social partners to regulate the employment relationship in a manner that is more conducive to enhancing productivity and economic growth.

In many previously planned economy countries which have undergone the transition to market-based economies, the challenges of legal reform have centred around the need to replace the former state-centred forms of regulation by legislation that strengthens independent and representative institutions capable of engaging in autonomous collective bargaining. This has normally involved adapting excessively invasive regulation and generally lightening the regulatory burden.

Дата добавления: 2014-10-17