The Asymmetry of Bargaining Power

Abstract

The historic and legal analysis of the labour market developed in Chapter 1 provided understanding of the nature of this market. The latter only exists because, beforehand, an asymmetry in the appropriations of production factors belonging to the individuals involved exists. Some possess capital and labour and are economically independent as individual producers (independent workers) or employer-producers. Others, bereft of capital, in order to live, are obliged to sell their labour power to employers on whom they depend economically. Labour is therefore a market in which the balance of power between the parties is fundamentally asymmetric, hence its intrinsically conflictual nature. The latter has made legislators aware that the great principle of freedom of choice, underlying the legal theory of contracts, could not be applied to most workers with respect to the relation that binds them to their employers. Hence, the whole objective of labour law (Ch. 1, §1.3) has consisted in providing a legal framework for an employer’s de facto power over employees. This has resulted in the characterisation through jurisprudence of the employment contract, whose spirit, so jurists say, is one of a relation of economic and legal subordination by which an employee exchanges a freedom against a security. On the one hand, employees give up the freedom of their availability and the use of their time as they deem fit to place themselves under the authority of an employer, who will supervise them in the execution of the work to be performed.