Research Handbooks on Globalisation and the Law series
Edited by Ugo Mattei and John D. Haskell
Chapter 24: Property in labour and the limits of contract
The employment relationship is generally conceived of as a creature of contract. Although employment regulation takes different forms in different countries, a contract of employment is at the core of all models. The employment contract is referred to as the ‘bedrock’ legal institution for the regulation of waged work, or as ‘the corner-stone of the edifice of labour laws’. The contract of employment is often depicted as providing the core conceptual features that define access to and the content of the various legal regimes that regulate labour and employment. At the same time, the contractual regulation of work is often criticized. 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. The argument of this chapter is 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 of 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. As has long been recognized, the contract of employment depends on the commodification of labour power.
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