The current Spanish Constitution was enacted in December 1978, marking Spain's transition to democracy after Franco's death. The Constitution expresses its commitment with a territorially decentralized rule of law-based state inspired in democratic and welfare-state principles and establishes a parliamentary monarchy. It recognizes the separation of powers and a list of fundamental rights, which, according to an explicit interpretive rule (Art. 10.2) are to be read in conformity with the Universal Declaration of Human Rights and other relevant international treaties and agreements that Spain has ratified.

The Constitution also foresees the creation of a new organ, the Constitutional Court, which is the ultimate guardian of the Constitution, and is not conceived as part of the ordinary judiciary. This Court has been functioning since 1981. The twelve justices that comprise it are elected for a nine-year term and are appointed by the different branches of government. Among its main attributes for our purposes are those of exercising judicial review of statutes (the ordinary judiciary is not entitled to review laws) and the protection of constitutional rights through amparo. Individuals can bring an action known as an amparo before the Constitutional Court when public authorities have violated their most fundamental rights and the ordinary judiciary has failed to redress their claims.

In few areas can we observe the transformation that Spain has undergone since 1978 better than in the changes women have experienced under the new constitutional order.

The Australian Constitution is a document that is mostly silent about rights. It has no comprehensive set of enumerated rights in the form of a bill of rights. Instead, it sets up a federal system and the basic framework of a representative democracy, with a few specific rights scattered throughout. Federal and state legislation provide the express means of protection of equality. Yet, the Constitution is a crucial part of the framework for understanding women's rights in Australia. Not only does it provide the source of federal legislative power with respect to equality but also, in recent years, a minority view on the High Court has asserted that equality is the underlying principle upon which the Constitution is founded.

In this chapter, we explore the way that the Australian Constitution, without an explicit set of enumerated rights, can and should be used to establish and protect women's rights in practice. We consider how women have shaped the Australian Constitution both in its creation and throughout its development to the present day and argue that the federal system reinforces the traditional division of public and private life to the detriment of women. Looking at the formal mechanisms that exist for pursuing equality and antidiscrimination claims in Australia with reference to international covenants, domestic, federal, and state legislation, we show that Australian constitutional rights are embedded into a larger institutional, bureaucratic, and cultural framework.

As we saw in chapter 1, human rights perspectives on labour law first gained ground in the 1970s. Commentators began to realise that collective bargaining could not provide all the protection workers needed. In the 1980s, labour rights became highly controversial. The government was keen to uphold workers' rights in some settings but not in others. It wanted to enforce individuals' rights against trade unions (arguing that unions treated individuals unfairly) but it did not want to enforce individuals' rights against firms (because it believed in keeping the labour market as free of regulation as possible). Today, rights perspectives on labour law are very common in the literature. Many commentators use rights language in order to evaluate the current law, and in doing so, they draw heavily on international and regional standards. The Human Rights Act 1998 (HRA 1998) has given an added impetus to the rights perspective by giving greater legal effect to some human rights.

This chapter will begin with a historical introduction to the development of human rights, focusing in particular on labour rights. This will give you an overview of the international and regional human rights instruments which will be discussed throughout the book. The second section of the chapter will turn to the complex questions of interpretation surrounding human rights: who can claim a right and against whom can they bring their claim? What exactly does any given right protect? And how (if at all) can we justify interfering with a right?

In chapter 10, we looked at what trade unions did: at the relationship between the trade union and the employer. In this chapter, we will examine the substantial body of law surrounding trade union membership. The law governs the relationship between the trade union member and the employer, and between the trade union member and the union itself. Although trade union membership has been declining since the 1970s, the issues to be discussed still affect many workers. In 2002, 26.6% of UK workers – some 7.3 million individuals – were members of a trade union. Moreover, both pro- and anti-union writers acknowledge that the law on membership plays an important role in encouraging – or discouraging – unionism.

A rights theorist would give this chapter the title ‘freedom of association’. This denotes the right to form and join trade unions which features in civil and political rights instruments as well as economic and social ones. Rights theorists agree that the right is highly important, and they also agree on some aspects of its interpretation. For example, the right means that employers may not discriminate against workers on the grounds that they are members of a trade union, and that workers should be free to join a trade union if they want to. But other aspects of interpretation are much more controversial. Should employers be obliged to help unions by providing trade union officials with an office at the workplace? Can an individual be compelled to join a particular union? Can a union force its members to obey its instructions?

Working time has traditionally been regarded as a matter for collective bargaining or for managerial decision-making. Nowadays, three important aspects of working time are regulated by legislation. First, the Working Time Regulations 1998 (WTR 1998) seek to regulate the working time of all workers, by prescribing limits on the maximum number of hours which can be worked in the week and by requiring employers to give their workers daily and weekly rest breaks and annual holidays. Second, the law forbids discrimination against those who work part-time. Unless the employer can justify treating part-timers differently, it must give them the same benefits as full-timers. Third, the law provides various kinds of leave to enable employees to combine work and family life: maternity leave, paternity leave, parental leave and emergency leave. Parents may also ask for their employer's permission to work part-time or from home or in some other way which will assist them in fulfilling their family responsibilities.

In the international human rights instruments, there is a long-standing tradition of rights to reasonable limits on working hours and to paid holidays. Such rights have been framed as basic minimum standards which are necessary to ensure that all workers are treated fairly by their employers, or sometimes as an aspect of health and safety regulation. Maternity leave is also a well-established right.

This postscript is not intended to draw any conclusions from our discussions. The purpose of this book has been to present you with a variety of – often conflicting -perspectives on labour law, and to leave you to draw your own conclusions about which arguments you find most persuasive. Instead, this postscript looks towards the future. Labour law is in a constant state of flux. Sometimes policy-makers may be more heavily influenced by rights arguments; sometimes they may act on economic imperatives. And as we saw in chapter 4, labour law is regulated in many different layers: international, regional and domestic. So the competing arguments may carry different weight at these various levels, leading to conflicts between them. How is labour law likely to develop in the next few years?

The economic and social context

At many points in this book, we have referred to the process of globalisation. Multinational enterprises are able to locate their management, research and production activities virtually anywhere in the world. Cost is a major factor in their decisions. The fear is that a state like the UK will seem unattractive because of its high labour costs, and that this will lead to substantial job losses. National governments will lose control over labour law because they are beholden to the multinationals. Many fear that this will lead to a ‘race to the bottom’ as governments seek to reduce their labour standards to the lowest possible level. What is the future of globalisation?

As chapter 1 explained, governments of the 1960s and 1970s became increasingly worried about the economic implications of labour law. They were concerned about the contribution unions' wage demands made to inflation, and about the impact of strikes on productivity. These concerns remained relevant in the 1980s, and a new one was added: that labour law might be contributing to high levels of unemployment. The Labour government has seen labour law in a different light: as a means of promoting productivity and competitiveness.

These developments in government policy have been paralleled by a growing interest among academic labour lawyers in the use of economics perspectives on their subject. In the 1980s, for example, the government drew heavily on the arguments of economists who favoured ‘free markets’, in which regulation by labour law would be kept to a minimum. Some labour lawyers responded by showing that not all economic analysis pointed in this direction: that there is also a significant school of thought which views labour law as one of the ways in which the government can help firms to become more successful. Later chapters of this book will explore the competing conclusions reached by economists on a selection of topics in labour law.

But all of this can seem rather daunting to lawyers with no background in economics. The purpose of this chapter is to demystify the subject by explaining some of the basic concepts economists use, and their application to labour issues.

Strikes are not very common in the UK. The ‘strike rate’ is defined by statisticians as the number of working days lost through strike action per 1000 employees. The most recent figure for the UK is for the year 2000, in which 20 working days per 1000 employees were lost. In general, the strike rate for the UK has been falling, from 34 in 1991 to 10 in 1999, though there are occasional ‘blips’: a large dispute in 1996 took the average up to 55. It is not yet clear whether the figure of 20 for 2000 is a similar ‘blip’, or the start of a new upward trend. Further proof that the UK's strike rate has declined to a very low level is provided by the WERS. This study collects data by asking managers whether or not any industrial action has taken place in their workplace during the last year. In 1980, a quarter of workplaces reported some kind of industrial action (including non-strike action). In 1990, the figure had fallen to 13% and by 1998 it was just 2%. The figures for strike action were 11% in 1990 falling to 1% in 1998. Nevertheless, industrial action is probably the most controversial topic in labour law. Most people have experienced the disruption industrial action can cause: perhaps your travel plans have been affected by a strike of train drivers or air traffic controllers, for example. And it provokes very different reactions from rights theorists and economists.

In the days of collective laissez-faire, a book on labour law would not have contained a chapter on wages. Workers' pay was seen as pre-eminently a matter for collective bargaining between trade unions and employers. Even when the law did intervene, through the creation of Wages Councils to determine wage rates for the lowest paid, this was viewed as a substitute for collective bargaining rather than as a new approach to pay determination. Nowadays, however, the position is very different. English law regulates pay in two ways. Firstly, the National Minimum Wage Act 1998 (NMWA 1998) seeks to ensure that all workers receive a minimum hourly rate for their work. This is intended to improve the working conditions of the lowest paid workers. Secondly, the Equal Pay Act 1970 (EqPA 1970) and the anti-discrimination legislation seek to ensure that workers who make an equal contribution to the firm are paid equally, and that no artificial distinctions are made on the basis of sex, race, religion and so on. The discussion of equal pay in this chapter will concentrate primarily on equality between the wages of women and men, because this has received most attention in the cases and the literature. However, it is important to bear in mind that unequal pay may affect other groups too, particularly the members of certain ethnic minorities.

This chapter is the first of three chapters dealing with the collective dimension of labour law: in other words, its approach to groups of workers. Trade unions are, of course, the classic example of workers grouping together in order to bargain with the employer about terms and conditions of employment. As we saw in chapter 1, the labour law of the 1950s was designed to support collective bargaining. Today, the law continues to play this role to some extent. However, collective bargaining is no longer the sole mechanism through which workers may present their views to the employer. Duties derived from EC law to consult with employees also form an important part of labour law. Consultation may involve trade unions but it need not do so. This chapter will address the two main controversies which arise in this area: whether workers should have a say in the running of the workplace at all, and if so, what form their participation should take.

Human rights instruments generally support some form of worker participation. Civil and political rights instruments usually contain a right to form and join trade unions ‘for the protection of [the individual's] interests’. Commentators have argued that this phrase could be used to support a right to engage in collective bargaining, but interpretations (for example, by the ECtHR) have not always confirmed this view. Economic and social rights instruments usually contain an express right to collective bargaining.

In this chapter, we will focus on the various modes of regulation in labour law: in other words, on the various different ways in which labour law is created and applied. You might think that this topic is too straightforward to merit a chapter to itself. Surely labour law is created by Parliament and applied by the courts? But matters are not so simple. It can no longer be argued that labour law is solely a matter for national governments. As we saw in the last chapter, some rights in the ECHR are relevant to labour law. These can now be enforced in the UK courts using the HRA 1998. Even more significantly, EU law (which takes priority over inconsistent national law) covers many aspects of employment, such as equal pay between men and women, collective consultation and the protection of atypical workers. Finally, the UK is bound in international law by ILO Conventions on important areas such as freedom of association and collective bargaining.

These various layers of regulation may come into conflict with each other. For example, the EU might propose legislation designed to promote workers' rights in a particular area – collective consultation, for example – but a UK government which was keen to reduce the regulatory burdens on businesses might be hostile to such legislation.