Employees, Workers and the Autonomy of Labour Law
26 Pages Posted: 3 Feb 2000
Date Written: December 1999
The question of which types of work contract fall within the ambit of labour law (the issue of the personal scope of labour law) is a crucial, foundational problem for employment lawyers. The distinction between, in common law terms, contracts of service and contracts for service or, in civil law terms, between subordinated and non-subordinated labour, is among the central questions which have puzzled labour lawyers. Apart from an overtly comparative perspective, however, our main concern in this paper, however, is to move beyond the dichotomy, which has tended to dominate earlier discussions, between contracts to which the whole of labour law applies, on the one hand, and contracts to which none of it applies, on the other, no matter how that line turns out to be drawn. We suggest that it is useful to look at a broad spectrum of contracts, including contracts for the performance of work by what everyone would agree are "the genuinely self-employed" and even contracts where the obligor, whilst contracting to have work done, has not contracted to do that work personally. The purpose of the investigation is to establish, at least in an initial and preliminary way, the extent to which techniques familiar to labour lawyers are used to regulate contracts which probably no-one would regard as contracts of service. We aim to indicate not only the extent of this practice but also to make suggestions about why it has developed. Since this is obviously a potentially vast field of enquiry, embracing as it does large areas of commercial law, we can here do no more than indicate an approach to the topic and apply that approach to a few selected areas of contracting for the performance of work.
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