Statutory Labour Protections and the Contract of Employment: A Strained Relationship

Abstract

The contract of employment has been described as the “corner-stone” of modern labour law. Generally, labour protection laws are attached to the contract of employment and the effects of falling outside of these protections can be considerable. The dichotomy between the employee, hired under a contract of service or contract of employment, and the self-employed worker or independent contractor, hired under a contract for services, is therefore a primary concern within the field of labour law. The distinction between the two, however, has long presented difficulties both in civil law and common law jurisdictions. How to distinguish between the two and, perhaps more importantly, how the two should be distinguished, therefore, are well-covered topics. The primary concern of this paper is not to repeat this debate, but instead to question whether the contract of employment’s role as the prerequisite for the provision of labour rights is justified in the modern world.