Why Do We Fear Civil Law in Labour Law?

• Author: Gaabriel Tavits
• Pages: 142-151

Gaabriel Tavits

Why Do We Fear Civil Law in Labour Law?

Introduction

Discussion concerning the nature of labour law and its position in the legal system has been an ongoing debate since the emergence of contemporary labour law and it lacks a specific resolution to date. The resolution of the relationship between labour law and civil law has always led primarily to the opinion that labour law is a separate branch of law and it would be better to keep the relative importance of civil law at a minimum in applying labour law provisions, whereas at best, the application of civil law in labour law should be fully precluded. It is apparent, above all, in the approaches of labour law activists that they fear that civil law may be implemented in labour law. This rationale has always been founded on the idea of protecting the employee as the weaker party in an employment relationship. Upon reforming Estonian labour law, the discussion has also focused on the labour law activists' claim that labour law must be a separate branch of law, whereas the application of civil law principles is pointless and contrary to the people's legal awareness. The fear of abuse on the part of the employer is so deeply rooted in people that any attempts to introduce more freedom of contract in employment relations lead to fierce resistance while the attempts are not regarded as a serious topic in further discussions¹.

1. Labour law and civil law

1.1. Development of private law and labour law

The development of labour law cannot be viewed separately from the general development of private (civil) law. Without comprehending how civil law develops, we are unable to get a clear idea of how labour law develops and what the main distinction between labour law and general civil law is.

Industrial production, the development of which commenced at the end of the 18^th century, at the beginning of the 19^th century inevitably brought about changes in the contemporary employment relations. Although the first codes of private law appeared at the beginning of the 19^th century, they do not reflect the transformed conditions in public life as a whole. It is understandable as the preparation of the codes lasted over a relatively long period of time and therefore the rapid changes in society could not be taken into account in laws. As a result, the contemporary employment relations are not reflected in civil codes. This, however, does not mean that the development of employment relations was not reflected in the civil codes at all. Thus, various civil law codes reflect contracts concerning provision of services². Although the above-mentioned provisions remained too scarce to regulate the relations between workers and manufacturers, they still serve as a basis for the development of contractual employment relations. The formation of public law rules that has been emphasised in relation with labour law and its developmental peculiarities has determined the development of labour law outside civil codes. However, here we must make a distinction between industrial work and work that was not done in factories. The enforcement of protection rules was primarily related to industrial work and it was, first and foremost, aimed at preventing the exploitation of minors and women. It established borders for the application of freedom of contract to industrial work. The works performed in households were not included in this regulation and the enforcement of protection rules was neither necessary nor important in this area. Thus, stressing the enforcement of public law rules as a particular feature of the development of the employment relationship, only one aspect of the development of employment relations is stressed. The development of employment relations in Estonia is no exception. The Baltic Private Law Code contained general rules concerning how and under what principles the employment relationship should be regulated. In addition thereto, the Russian Industrial Work Act, governing the legal position of factory workers upon performing their work, was also in effect on the territory of Estonia³. Yet before the Industrial Work Act was passed, individual legal instruments were adopted that regulated primarily the work of minors and women in factories⁴. However, the enforcement of these protection provisions does not lead to the establishment of labour law as a separate branch of law beside general civil law. Many years will pass until we can speak of labour law as a uniform branch of law. In 1920-1930s, labour law develops into an independent branch of law; it is primarily due to the fact that the public law protection rules play an increasingly important role and the private law rules remain in the background. An extreme example is Soviet Russia where all the provisions governing dependent employment relationships are assembled into a common labour code. The labour code serves as an example where the state actually regulated all necessary working conditions, and in such a system labour law had nothing in common with private law.

In the case of Soviet labour law, the questions of whether labour law in fact existed in such a system was justified. Proceeding from the regulatory level, a separate branch of law ? labour law ? had been created and the regulatory expression of that branch of law was the labour code. Examining the content of the issue, labour law did not exist in such a system ? the parties lacked an opportunity to freely negotiate the more important working conditions, freedom of collective agreement did not apply, the parties could not organise strikes and lock-outs to ensure that their demands be satisfied. Consequently, the elements of labour law characteristic of social market economy were not there. This testifies that Soviet labour law attempted to restrict the likelihood of people adopting decisions and agreeing on issues independently. The total control exercised by the state over the working conditions and the behaviour of the parties to employment relationships were integral parts of the system.

Although in the 1920-30s, the opinion that labour law is public law becomes increasingly prevalent, its connections with private law are still pointed out. Thus, according to the comments on the Workers' Employment Contract Act of Estonia, the workers' employment contract is a civil law contract, the position of which is regulated by a separate act⁵. In theory, however, labour law was viewed as public law⁶.

The development of the Estonian labour law system is inevitably related to the development of Russian labour law. From the establishment of Soviet power until the restoration of Estonia's independence, the development of Estonian labour law was a part of the development of the labour law legislation of the Soviet Union. Thus, the division of law into private and public law was not recognised and the implementation of civil law principles was out of question. In the Soviet legal theory, the borderline between labour law and civil law was drawn according to the goals of the particular branch of law. The goal of civil law was to regulate work results in the form of, e.g. contract for services, whereas the main function of labour law was to regulate the work process or working conditions, how work had to be carried out⁷. The analyses of the period did not discuss the question of whether labour law was civil law or not. Labour law was regarded as a separate branch of law. At the same time, it was admitted that civil disputes were disputes arising from labour, family and civil law relationships⁸.

During the first years after the restoration of Estonia's independence the prevailing opinion was that labour law served as an independent branch of law and it was an area of law that, being a part of private law, still contained many legal provisions of public law nature. Until 1997, it was not actually discussed that the provisions contained in contract law could be applied in labour law.

The distinctive features of labour law have been primarily emphasised in relation to the fact that labour law provisions serve as protecting the employee, and as the provisions protecting the employee are unilaterally binding, it is impossible to use the civil law principles when regulating employment relations. Such an approach, however, is not correct as the civil law principles need to be taken into account when regulating both individual and collective employment relations.

1.2. Functions of labour law

Working methods are different and this may be due to the fact that the legal regulation of employment relations may also differ. Work is always a person's purposeful intentional activity that is, above all, aimed at creating values. Work may be performed in a subordination relationship with the person providing work, whereas work may also be performed in equal relations with the person providing work. Depending on the nature of the relations between the employee and the person providing work, the legal regulation must also differ.

As a rule, labour law in its historical development serves as a cornerstone and mirror of the existing political government system. The various periods of labour law are determined each time by the existing government forms and government ideologies⁹. According to the applicable constitutional principles and forms of organising the state ? e.g. tsarist state, National Socialism, Estonian SSR, Republic of Estonia, etc. ? different ways of organising employment relations may be distinguished.

Labour law is an essential...