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One of the most important critiques of regulating employment through a contractual frame is that it hides from view the inequality of bargaining power that exists between employers and employees. This chapter argues that a contractual framework obscures more than the inequality of bargaining power between the parties – it also obscures the proprietary basis of the exchange. The employment contract is a legal mechanism designed to transfer wages and rights of control over workers’ capacity to labour. Conceived in this way, the employment relationship is fundamentally a contest for control over property (labour power) waged through contract. For this reason, analysing the property parameters of the employment relationship opens up another window for examining the strengths and weaknesses of regulating employment through contract.
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This essay attempts to put forward a research agenda for properly evaluating the changing nature of unions’ human rights representational obligations since Weber. I begin by investigating two legal questions: first, whether unions are held to a more stringent duty of fair representation (DFR) standard in regards to members’ discrimination grievances than prior to Weber and Parry Sound, and second, whether there has been a broadening of the concept of union discrimination under human rights codes, such that unions may be held liable for failing to bring forward discrimination grievances. With the legal picture in place, I then set out a series of empirical questions that need further research to properly assess whether, and to what extent, Weber and Parry Sound have altered unions’ human rights obligations in the administration of collective agreements, and more generally, their approaches to dealing with human rights issues in the workplace. The essay intentionally raises more questions than it answers, with the objective of provoking further research on important issues regarding labour law in action.
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As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice. This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individuals' proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employer's rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract. This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.
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