Academic journal article New Zealand Journal of Employment Relations (Online)

Labour Law and Human Rights

Academic journal article New Zealand Journal of Employment Relations (Online)

Labour Law and Human Rights

Article excerpt


Some view labour law as a subfield of contract law. On this view, the employment relationship must be regulated by principles of contract law because the employment contract is no different to other contracts. Others believe that "labour is not a commodity".1 Workers and their labour are not like other things that you buy and sell; workers have dignity and rights, so the employment relationship must be regulated by principles of human rights law, rather than contractual rules. Human rights law developed exactly in order to protect human dignity, and there is no reason to think that the protection of dignity and rights should stop at work. In the last few years, the argument that labour law and human rights are interconnected has gathered momentum in scholarship and judicial decision-making.2 It has been argued that human rights law can offer important insights to the critical development of labour law.3

In the sections that follow, I first examine the reasons for the resistance to examining labour rights as human rights. Second, I turn to European human rights developments in order to assess the case law of the European Court of Human Rights in this context. The third part suggests that we need a deeper understanding of labour rights as human rights that is grounded on the prohibition of workers' exploitation.

Labour Rights as Human Rights

It has been said that human rights "has become the lingua franca of global moral thought".4 There is a proliferation of literature that discusses their legal protection, some scholarship that discusses the relationship between their philosophical foundations and their legal protection,5 as well as an abundance of governmental and civil society organisations that aim to protect human rights on the ground. When referring to human rights, a good starting point is the Universal Declaration of Human Rights (UDHR) adopted by the General Assembly of the United Nations in 1948.6 The Declaration is not a legally binding document, but it is extremely influential. The Declaration protects rights such as freedom of expression,7 the right to life8 and the prohibition of torture,9 and also includes labour rights, such as the right to work, the right to free choice of employment, the right to fair remuneration ensuring a life with dignity, the right to form and join trade unions,10 as well as the right to rest and leisure including reasonable working hours and holidays with pay.11

The Declaration was criticised by some at the time that it was adopted for including rights such as holidays with pay alongside other liberal rights. Maurice Cranston said: "[w]hat the modern communists have done is to appropriate the word 'rights' for the principles that they believe in".12 But Cranston's critique has been addressed. David Luban said persuasively that those who criticise art 24 of the UDHR who probably:13

...include academic critics writing during their sabbaticals - have not considered seriously what a working life would be for someone whose day-to-day survival depends on a regular paycheck and who must work at a grinding job fifty-two weeks a year from age fifteen until premature death at fifty.

As Jack Donnelly underlines in response to Cranston:14

.the full right recognized is a right to "rest, leisure, and reasonable limitation of working hours and periodic holidays with pay". Denial of this right would indeed be a serious affront to human dignity; it was, for example, one of the most oppressive features of unregulated nineteenth century capitalism.

However, human rights treaties adopted after the UDHR divided rights into two categories: civil and political rights (such as freedom of expression and the right to life) were protected in documents such as the European Convention on Human Rights (ECHR), while economic and social rights (such as the right to housing, the right to work and the right to decent working conditions) were included in treaties such as the European Social Charter (ESC). …

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