Freedom of Association and the Right to Contest: Getting Back to Basics

Voices at Work, Tonia Novitz & Alan Bogg, eds., Oxford Univ. Press, 2014, Forthcoming

NYU School of Law, Public Law Research Paper No. 13-81

26 Pages Posted: 8 Dec 2013 Last revised: 11 Dec 2013

See all articles by Alan L. Bogg

Alan L. Bogg

University of Bristol

Cynthia L. Estlund

New York University School of Law

Date Written: December 6, 2013

Abstract

As worker participation through trade unions has declined across much of the developed world, especially in the US, the UK and Canada, scholars and activists have turned to the concept of "freedom of association" (FOA) -- defined in international labour law as the fundamental right of workers to form and join trade unions of their own choosing -- as a basis for reclaiming a voice for workers in economic governance. Much of this work pursues what we call a strategy of ascent: to what extent does the existing FOA as defined in international and national labour law encompass constitutionalised rights to collective bargaining and to strike, for example? This chapter adopts instead a strategy of descent: does FOA both rest on and help to support more basic rights of concerted protest in the workplace as a prelude to, or even a substitute for, trade union organisation? Drawing upon Philip Pettit's philosophical work on freedom as non-domination, the chapter contends for the recognition of an individual right to contest employer power, free from both state and employer interference. This fundamental labour right, coupled with an associational right or freedom to do jointly with others what one has the right or freedom to do as individuals, provides a normative foundation for protecting informal concerted activity as well as the more familiar trade union forms of FOA. This chapter maps the specific configuration of labour rights in Canada, the UK and the US from this perspective, and identifies some newly-apparent gaps in both the law and the scholarly literature regarding fundamental labour rights.

Suggested Citation

Bogg, Alan L. and Estlund, Cynthia L., Freedom of Association and the Right to Contest: Getting Back to Basics (December 6, 2013). Voices at Work, Tonia Novitz & Alan Bogg, eds., Oxford Univ. Press, 2014, Forthcoming; NYU School of Law, Public Law Research Paper No. 13-81. Available at SSRN: https://ssrn.com/abstract=2364586

Alan L. Bogg

University of Bristol ( email )

WIlls Building
Queens Road
Bristol, BS8 1RJ
United Kingdom

Cynthia L. Estlund (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6184 (Phone)
(212) 995-4881 (Fax)

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