The right to equality versus employer ‘control’ and employee ‘subordination’: Are some more equal than others?
Authors Darcy du Toit
Affiliations: Emeritus Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 1 – 27
The growing discourse on ‘labour rights as human rights’ has clarified important areas of convergence as well as tension between these two emancipatory disciplines. The most basic of all human rights is the right to equality, whereas the starting point of labour law is the inequality between worker and employer, not only in terms of bargaining power but also in terms of the worker’s legal subordination within the employment relationship. Though rooted in the law of property, this inequality is implicit in all labour legislation and is also expressed in the entrepreneurial rights of the employer to which the worker’s job security (or very existence as a worker) is subject. The article considers some implications of this contradiction. It notes that the classic labour law response to the power imbalance in the workplace, the promotion of collective bargaining, does not challenge the legal hierarchy. ‘Equality in the workplace’ translates, essentially, into equal treatment of workers by employers but not of worker and employer. All human rights vested in citizens or denizens (for example, the right to information or freedom of assembly) are refined, adjusted or limited through the filter of labour law to leave the inequality of the worker undisturbed. This raises questions about the boundaries of labour law as an emancipatory discipline. While hierarchy is an intrinsic feature of employment in a market-based economy, the same does not follow in respect of ‘work’. Economic and legal arguments in support of the employer’s power of command only explain or justify it to a limited extent. The article suggests an understanding of employees’ right to equality in the workplace indivisibly integrated with their fundamental rights beyond the workplace, limited not by the pre-emptive rights of the employer but, in essence, only by the inherent requirements of the productive process itself.