CONSTITUTIONALISING LABOUR AND EMPLOYMENT RIGHTS

This section will consider existing judicial and theoretical justifications for the constitutionalisation of labour rights, in order to appropriately locate and contextualise the institutional approach.

the employment relation resembles the power relation of an authoritarian state over its citizens. If workers’ rights can be viewed as fundamental or human rights, these are stringent entitlements with an increased moral and legal force. They can there­fore be a countervailing legal force against an employer’s power based on ownership of private property. They may also ensure that workers’ essential interests are not sacrificed in the political compromises of legislation.^[520]

The Canadian Supreme Court held in 2007, for instance, that the Canadian Charter’s freedom of association clause explicitly protects the right to collective bargaining, and prohibits the legislature from ‘substantially interfering’ with that right.^[521] The Court reasoned that

the right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.^[522]

It held that, furthermore, ‘one of the fundamental achievements of collec­tive bargaining is to palliate the historical inequality between employers and employees’.^[523] The Court also relied upon US judgments interpreting the Wagner Act, where the right to collective bargaining had been termed a ‘fundamental right’ because of the structural imbalance of power between employers and employees.^[524]

Other constitutions categorically encode labour and employment rights, while allowing for a substantial degree of interpretation at the instance of the judiciary.

The constitutionalisation of labour and employment rights exists at the interna­tional and transnational level as well. The International Labour Organisation’s 1998 Declaration encodes a ‘core’^[530] set of primarily procedural labour standards titled ‘Fundamental Principles and Rights at Work’, which it enjoins member states to respect and protect.^[531] Similarly, the 2000 European Charter of Fundamental Rights requires member states to guarantee collective bargaining rights, rights to fair working conditions and rights against unjust dismissal.^[532] There is also a historical tradition underlying such an articulation: as Jessica Whyte notes, during the framing of the Universal Declaration of Human Rights, a majority agreed ‘that a 20th century rights declaration must offer protection from the “dependence and economic subjugation” of a capitalist market’ (emphasis added)^[533] (although that did not, finally, take detailed form in the Declaration).

It is therefore evident that setting out labour and employment rights in constitutional documents - or reading such rights into constitutional docu­ments by courts - is not new. In keeping with the default vertical approach, however, these rights are primarily directed against the state. For this reason, as mentioned above, the task remains to flesh out a theory that will justify the horizontal application of these rights, in constitutional documents.

What of theory? The institutional approach, as has been articulated in the previous chapter, focuses upon questions of power of a very specific kind (institutional power). It is therefore important to locate it within, but also to distinguish it from, other theories that have also made power central to their analysis, especially in the context of the labour market. The distinction I seek to draw here is between structural accounts of power (including the institutional approach) and interpersonal accounts of power (from which the institutional approach seeks to distinguish itself).

Examples of contemporary interpersonal theories of power include, most prominently, the republican theories expounded by Philip Pettit, Frank Lovett and other such scholars.^[534] Republican scholars are particularly concerned by relationships in which one party can wield arbitrary power (domination) over another.^[535] Republican scholars note that the context of the labour market is one in which domination is of particular concern. Importantly, however, republican theories of rights and domination continue to insist that the source of arbitrary power must be located within specific, identifiable agents (such as individual employers).

This affects republican theories in two distinct ways: first, prominent repub­lican theorists hold that as long as there exists a viable avenue of exit from a specific employment relationship, nothing more is required. This takes the form of the right to a threshold-level of basic income, which allows an individ­ual to leave a specific employment relationship but not exit the labour market entirely.^[536] And secondly, republican theorists hold that in a well-functioning competitive market, supplemented by a right to basic income, there is no further need for employment rights, as no individual employer can dominate workers.^[537] In other words, it is their argument that ‘a ‘property system or distribution will not be inimical as such to freedom’ to the extent that ‘it is the cumulative, unintended effect of people’s mutual adjustments’ via free market exchange’.^[538]

While republican theorists, therefore, operate with the same insight as the institutional approach - that is, conceptualising a horizontal rights framework based upon differences in power - the key distinction lies in how power is imag­ined.

it is not clear how the empowered exit mobility of workers will modify the structural constituents of domination in labour markets, such as hierarchical firm organization bureaucracy, and widespread employer control of the labour process. This may consti­tute a situation of what Lovett has described as ‘decentralized domination’, whereby workers simply enjoy a choice between dominating agents. While more competitive labour markets could improve working conditions, kindly masters are still masters.^[540]

For this reason, therefore, thinkers who identify as ‘labour republicans’ argue that it is important to expand the definition of power to include impersonal, or structural power. As Alex Gourevitch argues:

The labor republican view is that a form of domination arises when there is an unequal structure of control over productive assets. Specifically, this domination appears when this structure is so unequal that some group of owners privately controls all of society’s productive assets. Those who do not own are economically dependent on employers for jobs, wages, and thus their livelihoods... a reason for calling this structural domination is that the unfreedom of the laborer is not a prod­uct of his situation vis-a-vis a specific employer, but rather of his dependence on some employer or another for livelihood... that absence of alternatives is created by the distribution of control over productive assets, a distribution that is secured by legal protection of private ownership. (emphasis added)^[541]

This structural argument, indeed, has not been made only by labour-republican theorists. In their introduction to the recently published volume, Philosophical Foundations of Labour Law, Collins et al point out that the ‘asymmetry in the labour market arises in general because only one party, the employer, owns substantial property, the means of production, which places structural constraints on the freedom of the other party, the employee, to refuse offers of employment’ (emphasis added).^[542]

Other scholars, like Gilabert, are more direct, and call it ‘the relative power that agents have by virtue of their class positions within a class system’.^[543] At the heart of the argument lies the understanding that the difference in power - the ‘asymmetry’ - flows from existing institutions and structures, and cannot be understood without reference to the private parties’ relative loca­tions within those structures.^[544]

For the purposes of the institutional approach, the next step after articulating an account of structural power as applied to the labour market is to articulate remedies to protect labour from the vagaries of such power.

Insofar as regulation provides a constitutional framework for enterprise govern­ment akin to the constitutional framework for political government, the regulatory approach for combating employer domination is vitally important from a republican perspective. it sets the acceptable terms of employment relationships, limits mana­gerial power and discretion, provides modes of redress, allows for accountability, and backs all these up with sanctions. (emphasis added)^[545]

It should be clear that this framing of the issue - and, in particular, the under­standing of power as being located not in individual acts and agency, but in structures, which is then expressed through individual acts and agency - is very close to the conceptualisation offered by the institutional approach. In other words, the institutional approach belongs to the family of theories that place structural accounts of power at the heart of their analysis of the labour market and visualise constitutional rights as (one of) the vehicles that can mitigate structural imbalances in power. Drawing upon these insights, together with the insights offered in chapter five, the next section will therefore consider the application of the institutional approach to the labour market in general. The following section will then consider its application to the specific features of platform work.

IV