4 - Authority and co-operation

Summary

The legal construction of hierarchy

The legal model of the employment relation presents a structure of authority. From the contract of employment, the employer obtains the legal authority to direct work and the employee assumes an implied obligation to obey lawful orders. In the words of Kahn-Freund, the contract of employment creates a condition of ‘subordination’.

But the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by that indispensable figment of the legal mind known as the ‘contract of employment’. The main object of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship. Most of what we call protective legislation – legislation on the employment of women, children and young persons, on safety in mines, factories and offices, on payment of wages in cash, on guarantee payments, on race and sex discrimination, on unfair dismissal, and indeed most labour legislation altogether – must be seen in this context. It is an attempt to infuse law into a relation of command and subordination.