The Nature and Formation of Labour Law

• Author: Gaabriel Tavits
• Pages: 103-111

Gaabriel Tavits

The Nature and Formation of Labour Law

Introduction

Estonian labour law is facing a period of change. The main problem is how different institutions of labour law should be regulated: whether by uniform legislation such as a labour code, or whether employment contracts, should be regulated by the law of obligations and other labour law issues by separate Acts.

The present situation in the Estonian legal context is uncertain. On the one hand, a bill for Part I of the Labour Code containing the general provisions of the Labour Code and provisions concerning employment contracts has been prepared. Under the bill, employment contracts are not directly related to the provisions of the law of obligations and, therefore, will be regulated independently from general contract law. The Labour Code should, in essence, cover all major institutions of labour law. Such an approach has, for example, been taken by the new Croatian Labour Code.

On the other hand, a bill is also under preparation according to which employment contracts will be regulated by the law of obligations and regarded as one of the many contracts under the law of obligations. This approach follows the example of the German, Swiss and Dutch civil codes which provide for employment contracts as a specific category of contracts. By the time this article was ready for print, it was not yet clear as to what extent Estonian labour law would remain connected with civil law.

This article analyses the implications of labour law in the Estonian legal system, the reasons for separation of labour law from civil law and the extent to which labour law is connected to the principles applicable in civil law.

1. Meaning of Work

Throughout history, people have always performed some kind of work. The main objective of such work is self-preservation. Everything which is necessary for human life and development is created by work. Work is one of the ways by which human activity is expressed in general everyday, natural, social and economic life. Work is the basis for the existence of the whole society. Hence, the importance of the regulation of work by law should not be underestimated.

The concept of work is difficult to define since different definitions exist. Work may be defined as a purposeful mental and physical human activity the objective of which is the satisfaction of generally recognised needs rather than a human effort or activity¹.

Work is an essential guarantee for economic and social independence and the sovereignty of people. At the same time, work cannot be separated from people. Work and the persons who perform the work are inseparable. Today, wage earners form the greatest number of working people. Workers depend on the remuneration they receive. Such dependence means that the remuneration for work is of vital importance to workers and their families. All of their life depends on the remuneration payable for their work.

Any activity which may be regarded as work (for example, in physics, A = F x s x cos_) need not be immediately subject to regulation by law let alone regulation by labour law. Work in the legal sense needs additional characteristics. It is known from history that certain people who performed work, such as slaves, were not subjects of law but were regarded as objects of law and, therefore, were treated as objects. In terms of regulation by law, their work had no meaning. Since slaves were regarded as objects of law, they were treated accordingly: they were sold, leased or lent like immovables. Work acquired a meaning in labour law when workers were pushed aside by machines and the value of their labour on the market began to drop. As the importance of human labour decreased, traders were free to decide how to treat their workers. A need for specific regulation arose in order to protect the status of workers pushed aside by machines.

The co-habitation of people and the relations between them are regulated by law. Through work, a specific human relationship is expressed. As soon as a worker is connected with another party, that is, the person for whose benefit the work is done, a relationship is created which is subject to regulation by law (regardless of whether the parties are an employee and employer or a contractor and contracting party). In such case, a worker is a person who works for another person and, as a rule, exhibits activity. However, performance of work may also involve a passive behaviour of a person; for example, a model who is used in portrait painting works both in the economic and legal senses².

The activity or passivity characteristic of workers has a legal meaning for the purposes of labour law only if such work is performed in the interest of another person who gains benefit therefrom. If a person is active only in his or her own interests (for example, a sole trader), such activity has no consequences in labour law in relation to other persons. As well, both active or passive conduct in the performance of work has legal effects only if such work is performed by prior agreement. Both parties to such agreement have mutual rights and obligations in labour law. One party must make efforts to do the work agreed on and the other party must pay remuneration for such efforts.

2. The Nature of Labour Law

Labour law focuses on human work and the regulation of the relationships arising from the use of human work. Thus, labour law regulates the human activities which are performed for the benefit of other persons. Regardless of the diversity of human activities and of the social and professional status of workers, a characteristic feature of such category of persons is that they work in subordination to other persons and, therefore, are not independent³. Since dependent work is predominantly performed in enterprises or in other undertakings of employers, the persons working in such enterprises form a natural association which, first and foremost, should be granted rights in the interests of the members of that association.

There are several different social relationships in which work does not form the core component but is an important factor in their formation. An example is the relationship which arises between universities and students. Work done by students in the course of their study does not give rise to a relationship in labour law since it is not the working process but the acquisition of knowledge that forms the content of the relationship between students and the educational institution. In such case, work is a physiological and psychological process, a way to acquire knowledge, which is not an object of regulation by labour law. The status of students in universities and their rights are legally determined not by how much they work to acquire knowledge but by their progress in particular subjects. Although work done in the acquisition of knowledge is important, it has no meaning for the purposes of labour law and, therefore, students cannot demand the application of the rules contained in labour law with respect to themselves⁴.

Based on the above, it can be stated that, despite its name, labour law regulates both work as such and the legal status of working persons or workers. However, it should be noted that labour law also regulates the legal status of the employer, the other party to an employment relationship. For example, the rights and obligations of employers upon the termination of employment contracts on the initiative of the employer, the conditions and procedure for the imposition of disciplinary sanctions and the rights and obligations of employers in lock-outs are all subject to regulation by law. Thus, labour law regulates the relationships between an employer and employees if work is performed in subordination to the employer.

In essence, labour law is the law protecting employees. Since employees are the economically weaker party in employment relationships, the objective of labour law is to provide employees with a set of minimum conditions for the performance of work. A labour code should be "on the side of" employees so as to balance the positions of the parties in employment contracts⁵.

Although different definitions of labour law exist, there is probably no definition which is adequate to characterise the different relationships regulated by labour law.

Labour law has been regarded as law for the protection of dependent workers⁶. Such a definition of labour law is difficult to criticise since it expresses the content and meaning of labour law most clearly and the reason for the creation of labour law. Based on this definition, regulation by labour law does not focus on the relationships arising between employees and employers, but concentrates on the regulation by law of the status of employees. Although the relationships between employees and employers arise on the basis of corresponding agreements or employment contracts, they are not agreements under which the parties have an equal status. Employers decide on the labour they need since, on the one hand, they are traders, and, on the other, employers. For employers, their function as employers is secondary. In order to prevent abuse of authority by employers with respect to employees, labour law must provide employees with minimum social guarantees, also taking into account the interests of employers.

On the one hand, labour law is a specific law protecting employees, whereas on the other, it has a significant influence on the whole economy. Recognition of the protection of employees' rights as the main purpose of labour law should in no way bring about diminishment of the role of labour law in safeguarding the industrial interests of enterprises⁷. The creation of safe...