ABSTRACT
The concept of the contract of employment expresses an ambiguity which is characteristic of modern labour law in general. Notions of ‘service’ or ‘employment’ which imply the ‘subordination of the individual worker to the capitalist enterprise’ 1 are set within a framework of contractual rights and obligations which are, supposedly, the product of mutual agreement between the parties. If the purpose of subordination is somehow to legitimise or underpin managerial prerogative, it is unclear what the role of contract might be. Does contract, by stressing the need for agreement and reciprocity of obligation, place limits on the notion of subordination, or is it a ‘figment of the legal mind’ which, no matter how ‘indispensable’, simply serves to conceal the exercise by the employer of unilateral power? 2 The ambiguity is deepened by the use of the same concept of the contract of employment to define and limit the scope of legislative intervention designed for the protection of the individual worker. Those employment relationships which are based on dependent or subordinated labour are deemed to be appropriate subjects for regulation and taxation under legislation of the welfare state which aims, in various ways, to collectivise and redistribute certain social and economic risks. Statutes governing occupational health and safety, employment protection and unemployment insurance tend to exclude ‘independent’ or ‘autonomous’ labour from the scope of regulation, or at least from the core of protective rules. 3 From a legal point of view, then, ‘subordination’ is both the expression of the worker’s subjection to managerial prerogative, 4 and also the gateway to social protection.
