The Constitutionalization of Employment Relations: Multiple Models, Pernicious Problems
| DOI | 10.1177/0964663910376339 |
| Author | Harry Arthurs |
| Date | 01 December 2010 |
| Published date | 01 December 2010 |
| Subject Matter | Articles |
The Constitutionalization of
Employment
Relations: Multiple Models,
Pernicious Problems
Harry Arthurs
Osgoode Hall Law School, York University, Canada
Abstract
The constitutionalization of employment relations has been proposed as a possible
response to the serious difficulties confronting workers and unions in an era of neo-
liberalism and globalization. This article challenges this proposal on two grounds. First,
‘employment’ no longer serves as an appropriate platform for labour policy, and in any
event is conceptually inappropriate for constitutionalization. And second, a survey of the
multiple meanings and manifestations of ‘constitutionalization’ at the level of the nation
state, the global economy and the enterprise reveals that this approach is unlikely to pro-
duce positive practical results for workers. Nonetheless, to think about the constitutio-
nalization of employment relations is productive in the sense that it requires engagement
with the pernicious problems of articulating a ‘new normal’ – a ‘new normativity’ – that
represents a better balance between workers’ interests and those of employers.
Keywords
constitution, employment, globalization, governance, labour, workers, rights
Introduction
Workers in most advanced democracies today confront greater individual insecurity and
loss of collective agency than they have in decades. The question posed by Ruth Dukes in
an important recent article is whether the constitutionalization of employment relations
will improve their situation (Dukes, 2008). In my view, it will not. ‘Employment’ is an
inappropriate concept around which to organize constitutional protections. And more to
the point: ‘constitutionalization’ in its multiple manifestations offers little promise of
transforming employment relations at the level of the enterprise or the state, let alone
in the context of globalization. Canada’s recent experience, I argue, provides ample
Social & Legal Studies
19(4) 403–422
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DOI: 10.1177/0964663910376339
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evidence to support these conclusions. Nonetheless, I conclude, Dukes’ question should
prompt fundamental rethinking of the employment relationship, with a view to articulat-
ing a ‘new normal’ – a ‘new normativity’ – that represents a better balance between
workers’ interests and those of employers.
Why ‘Employment Relations’? Why ‘Constitutionalization’?
The use of ‘employment relations’ as a category of intellectual analysis and a discrete
domain of public policy is problematic. Changes in the modes and relations of produc-
tion have rendered ambiguous the relation between employers and employed, truncated
job tenure, and increased labour market precariousness (Vosko et al., 2003). The concept
of ‘employment’ has therefore become both too under- and too over-inclusive a term to
embed in any constitution. It excludes too many of those who need constitutional protec-
tion most (the old and shrinking proletariat, the new and growing precariat, workers in
the informal economy, the chronically unemployed and the self-employed) and includes
too many of those who need it least (corporate executives, professionals, academics, civil
servants and athletes). Moreover, globalization and a new international division of
labour have introduced a transnational dimension to employment relations, so that the
project of ‘constitutionalization’ would have to be shifted to the global level where it
is hardest to accomplish. And finally, the rise of market fundamentalism and the tax-
payers’ revolt have made it impossible for governments to make good on the constitu-
tional promise, once implicit in the Keynesian welfare state, to keep workers in work,
or buffer them against the consequences of unemployment.
To propose the constitutionalization of employment relations is thus not merely to
tweak the conceptual repertoire of labour law; it is to challenge fundamentally the domi-
nant tendencies in contemporary political economy. However, the working class itself is
unlikely to mount such a challenge. Its political and industrial wings are in disarray; its
identity, culture and solidarity have largely dissolved; its very existence has been
negated as workers are re-conceptualized by themselves and others as ‘economically
rational’ self-interested individuals, and as members of ‘hard working’, ‘tax-paying’ and
(until recently) ‘home-owning’ ‘middle-class’ families and communities. For all these
reasons ‘employment’ has become an unsuitable platform from which to project rights
or deliver entitlements.
And worse yet, the multifaceted problems besetting ‘employment relations’ invite
constitutionalization of an array of substantive protections that may be difficult to recon-
cile either conceptually or functionally. Are workers to be protected against the pertur-
bations of unregulated labour markets by a constitutionally-mandated social safety net?
Or guaranteed access to work through constitutionally-constructed labour market insti-
tutions and policies? Or shielded from exploitation at the hands of employers by
entrenched minimum employment standards or, better, by a broad right to ‘decent
work’? Or merely guaranteed adjectival rights such as the right to be consulted or to
accumulate countervailing power, leaving the substantive terms of employment to nego-
tiation? Should constitutional protections for ‘employees’ also extend to those experien-
cing comparable economic insecurity in analogous relationships: autonomous workers,
proprietors of small businesses, farmers, artists, trainees or retirees? And should
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