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Laura Carlson

This comparative legal work highlights how employee voice, both collective and individual, assumes different guises in the legal and industrial relations models in the United Kingdom, Germany, Sweden, and the United States. At a time when labor rights are gaining status as human rights, a comparison of different systems, delineating the boundaries of such rights, is warranted by the protections sought and granted. The historical trajectories of the four systems have much affected the outcomes in the form of today’s national labor law models as well as those key issues still contested. The historical origins of collective worker organizations, first in the form of the guild system, then expanded to journeymen’s associations, then to the modern worker organizations are traced. A comparison of these different systems from the perspectives of employee voice and Habermas’ procedural democracy concludes the book.

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Laura Carlson

The origins of worker collectivism historically lie with the guilds, whose history spans continents and millennia. The Greek and Roman collegia provide examples of internal democracy, as well as external controls in the form of legislation limiting many aspects of trade—even the choice of whether to enter into a trade, with fathers and children consigned to continuing the family trade for the good of the Roman Empire. The three early European guild systems examined—English, Swedish, and German—display similarities with respect to their development as well as internal self-regulation and provision of mutual aid. The guilds in this early period were pockets of democracy offering stability and support for their members in times of great social uncertainty and change.

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Laura Carlson

The fourteenth century saw the rise of the English guilds and the sixteenth the beginning of their demise. The Reformation, with its acceptance of profit and the Crown’s need to control corporate bodies, paved the way for dissension between masters and journeymen that eventually resulted in legislative control of wages and work conditions. The delicate internal balance that had been democratically achieved within guilds, with equal rights and the consideration of the positions of apprentices and journeymen as future guild members, was abandoned for a structure where guild leaders, at least in the London Great Twelve, no longer even needed to have had practiced the trade in order to attain leadership. Freedom of trade and production as well as profits became the focus. The commodification of labor began, sowing the seeds for the modern understanding of employment. Journeymen organized to provide the mutual aid once given by the guilds.

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Laura Carlson

The seventeenth to twentieth centuries in the United Kingdom saw the death of the guilds and the rise of journeymen’s associations to provide former guild support and mutual aid, which functions were eventually assumed by trade unions. After a century of legislative persecution of worker combinations as unlawful conspiracies, the Trade Union Act 1871 invoked the technique of immunities facilitating collective action and bargaining. A system of collective laissez-faire was established, with the state setting floors through legislation with respect to work conditions, and the social partners using collective bargaining to flesh out these rights. This non-intervention by the state was however eradicated by Conservative legislation in the period between 1979 and 1997, with ever tighter regulation of trade unions in the conscious attempt to reduce their power. The past thirty years have continued this political legislative battle, with often radical legislative changes depending on the government in power.

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Laura Carlson

The guild system was nested in German society, with the Hansa guilds in cities and the craft guilds in the home towns providing social security at a time when Germany comprised more than one hundred sovereignties. This explains both the lateness of any questioning of their existence and the attempts to create structure after Napoleon through a reinstatement of the guilds. The social security provided by the guilds was a motivation in 1830s Prussia as to implementing state social welfare and led to such a broad acceptance of state intervention that it was adopted on the national level in the 1870s to counteract the radical worker movement. The Nazi destruction of all worker rights led to strong constitutional protections of worker rights and voice in the 1950 Basic Law, which have continued in the present day German labor law model comprising works councils, employee board representation, and trade unions.

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Laura Carlson

The historical timeline from the dismantling of the guild system to the self-regulation of the labor market by the Swedish social partners was a little over 50 years. The guilds were outlawed by 1864 and by 1906 the social partners had entered into a collective agreement that laid the foundations for the present day Swedish labor law model, characterized by strong employer and employee organizations acting as cartels, a model not too dissimilar to the former guild structures. The pragmatic approach of the social partners and the very detailed procedural structures in place with respect to negotiations and industrial actions have resulted in very few lost working days due to strike. The current challenges facing the Swedish labor law model mostly come from the outside, in the form of international and EU requirements as to individual rights, which are to be met by this very collective approach to rights.

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Laura Carlson

The labor movement in the United States was faced a different set of challenges than Europe. Immigration and race very quickly became issues even for the colonialists. The journeymen structures were quickly embedded in the colonies, and by the 1833, the first trade union was founded. Depressions after the Civil War led to class strife, with the military often called in and the outcomes in lost lives high. American courts were highly active in industrial action, repressing union activity through injunctions. State action, discrimination, violence, and corruption also significantly mark the history of the union movement, leading the American legislature to focus on issues different from those considered by its European counterparts. The duty of fair representation was judicially created as a counterpoint to racial discrimination within unions, creating a right to worker voice and accountability by unions as early as the 1940s.

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Laura Carlson

Starting as ad hoc efforts by states and individuals to gain legal protections with respect to slavery, indenture and servitude, the focus of international efforts expanded to the conditions of workers more generally. These gradually evolved into strong cooperations motivated by the devastation caused by two world wars, beginning with the League of Nations and the ILO. Labor organizations had already begun cooperations in the late nineteenth century; these eventually became the international trade union confederations in existence today. Certain employee rights are now recognized as human rights on the international level by the UN and the ILO, and also on regional levels, including the EU, COE, and OAS. The rights recognized have also become more nuanced, beginning with limitations to the working day and night work protections and moving on to include issues of worker voice and not only the right to join a union, but also rights of consultation and negotiation.

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Laura Carlson

The themes addressed in the current UK labor law model have deep historical roots, with the current treatment of these issues very much reflecting the modern political debates. Democracy within the trade unions, between members and their organizations, has been used politically as a tool for restricting the power of the trade unions. Despite this, a voluntary trend can be traced within the unions as to greater representation of different worker groups. The UK system has several avenues available as to employee grievances, first bringing them to the employer. Acas can provide conciliation, mediation, and arbitration and trade unions legal assistance. The balance achieved in the UK labor law model between statutory regulation and self-regulation by the social partners, resting on constitutional principles such as natural justice and access to justice, provides a unique solution to the issue of employee voice.

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Laura Carlson

The German labor law model is built on both strong social partners and strong individual employee rights, particularly with respect to voice. The dual channel system with employee representation through both works councils and labor unions provides several avenues for employees to raise issues directly to the employer with support, to the works council, or to the trade union. The works councils are given enhanced statutory duties with respect to certain protected groups based on sex, age, disability, and race. Two important points can be seen in the procedural rules concerning labor disputes: quick and efficient solutions that are transparent and focused on the needs of the public, and employees’ access to justice in courts, with a reallocation of trial costs and fees to minimize the economic risks to employees, as well as checks that the costs and fees are not excessive.