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Cite as: Lord Wedderburn, Max Rood, Gerard Lyon-Caen, Wolfgang Daubler and Paul van der Heijden, <I>Labour Law in the Post-Industrial Era: Essays in Honour of Hugo Sinzheimer</I>, Aldershot: Dartmouth, 1994 ISBN 1 85521 644 2 HB Ł2500

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[1996] 4 Web JCLI">

Lord Wedderburn, Max Rood, Gerard Lyon-Caen, Wolfgang Daubler and Paul van der Heijden, Labour Law in the Post-Industrial Era: Essays in Honour of Hugo Sinzheimer, Aldershot: Dartmouth, 1994 ISBN 1 85521 644 2 HB Ł25.00

Reviewed by Sheldon Leader

Professor of Law
University of Essex
< leader@essex.ac.uk>

Copyright © 1996 Sheldon Leader.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

This is an interesting collection of essays: both as a forum in which distinguished authors identify the challenges for modern labour law; and as a telling example of fundamental disagreements over just what those challenges are. This divergence is no accident, for, in a period called "post-industrial", it is increasingly clear that the prefix doesn't simply mean that the economies of the West have moved beyond being primarily focused on industry; it also signals that along the way we have lost our bearings. We are no longer sure whether the modern worker is subordinated to capital in the way that marked the formative, protective instincts behind our labour law; we are no longer sure how the emergence of the multinational employer affects such basic tools of domestic legal systems as the contract of employment; and we are no longer sure how representation of employee interests is best given institutional form.

These are among the issues addressed by the authors, and it is significant that the essays are a product of their meeting to honour the memory and work of Hugo Sinzheimer, someone who found labour law at an earlier turning point in its history, and who offered novel ways ahead. While these contributions don't have that ambition, they do set their sights on the necessary preliminary work of seeing just where we must break with the past and where we can, on the contrary, continue to build on it.

Rather than summarise each contribution, it would be more useful to look across them at some of their common concerns. We can divide these respectively into questions about the values that animate labour law; about the nature of the employee whose interests labour law is meant to serve; and about the institutions of the law itself.

Values and Interests

Professor Gerard Lyon-Caen writes that,

"Labour law in the post-industrial society is a law of the 'Umwertung', that is to say of the revolution in values. The jurists of tomorrow will have to deal with this and not reject the categories and concepts refined through the years, but discover new meaning in them and employ them knowingly in a new way....."(p 104)

That insight should be attended to by all sides in the present debates, including some writing in this book: for only too often we find analysts locked in an official battle that carries on in much the same terms that we have known since the early part of this century, while a new conflict of interests, calling for the deployment of different values, has quietly grown up in the shadows. The official battle is between the advocates of individualism and collectivism. Some of the authors condemn the encroachment of individualist ideology; while others bow to it. Lord Wedderburn, in the first camp, devotes much of his essay to condemning the "shift from collectivism towards individualism". He cites as evidence the increasing practice of de-recognition of unions; the rediscovery of the management prerogative; and the general threat to social and economic justice that the weakening of collective bargaining can produce (p 24). The remedy, Wedderburn argues, is to strengthen the workers' collective rights at levels beyond those of the nation state, giving them a strong right to freedom of association as the centrepiece.

We will return to the proposed remedy in a moment. Let us stay with the values in play: for we find something of the opposite orientation in the contribution from Professor Max Rood. Rood writes that what characterises the present period in Western Europe is that "the worker's situation has dramatically changed". Rood goes on to claim that "his education has immensely improved; he is better trained and more highly skilled; he is more mobile; and is generally more self-confident (p 86). As a result, Rood argues,

"the changing type of worker now has less confidence in collectivities to defend his rights.... The concept of collectivism is rapidly losing ground to that of individualism. The new type of worker thinks he can look after his own interests."(p 87)

If you place this argument alongside Wedderburn's claim that "...the individual worker is in need of the collective shield as never before" (p 46); and that "[t]he essence of the employment problem is subordination, the very weakness of the individual worker" (p 44), one wonders if these two men are on the same planet. Of course, one might respond, they are looking at different parts of the population: there are many in the workforce, in the growing category of precarious employment, who would not recognize themselves in Rood's characterisation; on the other hand, there are many better-off employees who are in a position to move at their own initiative within the labour market, and for them Wedderburn's picture is equally overdrawn, since they simply do not experience the type of subordination that he evokes.

How, then, does one fashion a set of values that reflects this mixed picture? An overreaching individualism causes the position of the vulnerable to weaken further; and an overreaching reliance on the collective flattens prospects for the energetic and innovative. That is how we might interpret Lyon-Caen's challenge to those who would re- formulate the values at work in labour law.

Changing the Terms of Analysis

Clearly, we need to capture the best of the collectivist and individualist traditions in the new labour law, but in order to do so we should stop poring over the intrinsic merits of either, and move to a different area of concern. We need to understand more clearly how post-industrial systems of labour law distribute and regulate power. That does not involve an abandonment of a concern about the values that should inform the law, but will instead give us an ability to move beyond the abstract quality of the debate over those values: a debate that, as the difference between Wedderburn and Rood illustrates, draws on different parts of the workforce to support the central inspiration of each side, leaving them talking past one another.

Such a focus on power can be seen in Professor Paul van der Heijden's essay. He points out how there has been a shift away from state regulation addressed to employers to an inducement to negotiated solutions between labour and capital via a variety of mechanisms, of which the company based works council is a significant part, complemented by negotiation with trade unions (p 137). While this form of rule making is not itself new, what is significant is the scope of issues now allocated to the flexible response made possible via consultation and agreement with these bodies. National systems want it, and the European Union is going in the same direction. For example, the Directive on working time makes possible derogations from its centrally formulated norms via negotiation with worker representatives (Council Directive 93/104/EC), and the new Business Transfers Directive now proposes to allow some of its basic guarantees to employees to be changed for the worse, where this is necessary in order to secure the survival of the business, if these measures are agreed as organizationally appropriate between the employer and employee representatives (Draft Proposal, Art 4(3) Com (94) 300 final).

This shift to negotiated change marks a shift in the strategy of labour law: collective bargaining is no longer designed to fill in the gaps left by legislation; it is instead meant sometimes to substitute itself for legislation. A new form of subsidiarity in the European Union has appeared in the shadow of its well-known cousin: it is not one that decentralises power on a territorial basis, but rather on a functional one. Negotiation can step into the shoes of the state, or the EU itself, and vary their fundamental guarantees, sector by sector, within the prescribed limits.

This, in itself, is no bad thing: but there are certain configurations of that power to negotiate that can actually worsen the position of the most vulnerable portions of the workforce. To take the UK as an example, rounds of collective bargaining have been notorious for producing agreements between trade unions and employers by which, for example, part-timers are to lose out to the interests of full-timers (Clarke v Ely (IMI) Kynoch [1983] ICR 165 and Kidd v DRG UK Ltd [1985] ICR 405); women to men (ibid); and old to young (Nelson & Wollett v The Post Office [1978] IRLR 548). This is no accident, since the unions in question are most sensitive to the bulk of their membership, which, despite the growth in precarious employment, is still in a comparatively secure position and is ready to protect that position by trading off the rights of the vulnerable.

These tensions are not limited to the UK, as the essay in this collection by Professor Wolfgang Daubler on Germany shows. He points to the growth in atypical work as "the most important and threatening challenge to the established system of industrial relations." (p 117) It would be wrong, as he points out, to think that employers are always anxious to replace full-time by part-time employees. Instead, many are aware that, as he says, "the good functioning of the organization demands a full-time and relatively stable employment relationship." (ibid) But what Daubler does not allude to is the fact that, if anything, this attitude can further worsen the position of the part-time worker. As the facts (but not the decision) of the famous case of Bilka-Kaufhaus Gmbh v Weber von Hartz ([1986] IRLR 317) show, the employer can create a large gap in benefits between full and part-time employees precisely to encourage the latter to become the former. But for someone with important family responsibilities at a particular stage in his or her life, this does not open an opportunity but closes a vice around them. As a price for attending to their domestic obligations they must live with a markedly second class set of entitlements - often with the consent of a trade union that was meant to represent them along with other full-time employees.

It is true that some systems, such as the German, and EU law itself (via the Bilka-Kaufhaus decision and others), are trying to close this gap between full- and part-time worker (cf Daubler, ibid). But the possibility is always there for the gap to be held legitimate when it is shown to exist for "sound commercial reasons", within the limits of the principle of proportionality as enunciated in Bilka-Kaufhaus (supra).(1) An agreement between employer and union will often provide the evidence the law requires for such a sound commercial reason.

For those who are not satisfied with this result, wherein lies the remedy? It does not lie in a broad endorsement of collective values, since the problem lies in part with a particular alliance between employers and certain collective institutions representing workers; nor does it lie in an endorsement of individualism, since that carries within it the fiction that all workers are like Professor Rood's highly skilled and mobile characters, able to move with ease among bidders for their services. Instead, it calls for a thorough consideration of the new cleavages of interest within the workforce, with the aim of protecting the vulnerable via measures that include but go beyond the body of sex and race discrimination law already in place. The vulnerable in these situations have as much a need for protection from certain worker representatives as they do from employers.

Post-Industrial Values

It is easy to scoff at the term 'post' industrial, since it means so many different things. But that attitude would be a mistake, since the variety of things it refers to do fit together. Those who use it usually point, as they do in these essays, to: (i) the dominance of a service economy; (ii) the receding of the nation state as the decisive point of reference for regulating work relations, due to the globalisation of the economy; and (iii) a new international and domestic division of labour, with fundamental fragmentations appearing between a core of the workforce and those vulnerable to being marginalised. These are new settings in which old, well-known wrongs are sometimes committed, even as new openings for progress emerge. We have known for a century and a half what exploitation in the workplace looks like; and we also know that the wrong kinds of effort to stop it can be debilitating and self- defeating. The challenge is not so much to come across new values, as to find new ways to satisfy them in the right balance. These three aspects of the post-industrial economy point to the need for fresh initiatives in shaping worker representation. If these initiatives are not taken, the failure will consign many more to the army of the "downsized" in a process that is becoming increasingly detached from the people for whom it exists. The essays in this collection serve as a timely inducement for labour lawyers to focus with urgency on this issue.

Footnote

(1) For an analysis of the problems created by this proportionality principle, see Leader, S 'Proportionality and the Justification of Discrimination' in Dine, J and Watt, B (eds) Discrimination: Concepts, Limitations and Justifications (London: Longmans, 1996)
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