Worker’s environmental rights: broadening protection to workers in common law and civil law systems

Released: November 9, 2021

Victoria Ruiz Ledesma

Workers are entitled to the fundamental and universal right of a healthy environment. They are the weaker part of a labor relationship, and also the most vulnerable subject to climate change effects. Therefore, there’s an increase concern in making an intersection between labor law and environmental law worldwide. Even though common law and civil law jurisdictions share some differences in the ways of protection of workers’ rights, the right of a healthy environment is strongly recognized as universal. In order to identify the possibility of broadening the legal protection toward workers of climate change effects, we are going to make a comparison between labor and environmental law in these two legal systems.

Taxonomy of law is a major element in identifying the borders and limits of this possible approach in both systems, as stated by David Doorey [1],. Environmental law stands more as a public policy law, and there for, more linked to administrative law and the public domain; while labor law its by nature a private law affair. Nevertheless, labor law shares main standards and principles that can converge with those of environmental law in the private sphere, in civil law and in the common law system.

Both the right to work and the right of a healthy environment are universal human rights. The right to work is a human right contemplated in article 23 of the Universal Declaration of Human Rights of the United Nations “Everyone has the right to work, to a free choice of work, to just and satisfactory working conditions and to protection against unemployment ”, in articles 6 and 7 of the Protocol of the Human Rights Convention of the Association of American States (Protocol of San Salvador) says that“ Everyone has the right to work, which includes the opportunity to obtain the means to carry out a dignified life through the performance of a lawful activity freely chosen or accepted (..) The States parties to this Protocol recognize that the right to work supposes (..) a remuneration that ensures at least all conditions of dignified subsistence”. This is contemplated too in articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

In contrast, the right to a healthy environment is contained in article 11 of the Protocol of San Salvador “Everyone has the right to live in a healthy environment and to have basic public services. The States Parties shall promote the protection, preservation and improvement of the environment. " Unlike the right to work, the right to a healthy environment does not appear in the UN Declaration of Human Rights or in other fundamental human rights treaties such as the ACHR, so its development is linked to the second generation of human rights, the so called economic, social and cultural rights (ESCR), recently called EESCR, because they also include environmental rights.

The civil law system is well known as a law based in statutes and federal laws, strictly codified, in which jurisdictional precedents have not much relevance in the execution of the law. The civil law system received a great influence of the romano germanic legal system, developed in most European jurisdictions (Hamitovna, 2015) [2], which was modified by Napoleon’s modern concept of civil law based in the democratic creation of laws and Constitutions, known as the “pouvoir constituent” or “the constitutional power” as the main source of laws and statutes. Therefore, the judge who executes the law is framed to the literal interpretation of the norm, because he is the voice of the law, not a creator nor interpreter. The general rule in civil law is that “le juge est la bouche de la loi” (Montesquieu). Nevertheless, in the past decades, jurisdictions that belong to the civil law system have developed an increasing role in legal doctrine and legal principles, and a greater performance of jurisdictional activity.

We can see this systemic change of civil law in the modern practice of labor law. Tribunals in France, Spain, Portugal, and in developing countries that have adopted the civil law system, such as Argentina, Brazil, Colombia, and most Latin-American jurisdictions, have encouraged the development of doctrine and principles in labor law that protect specially workers, since it’s a common standard that the labor contract is an asymmetrical agreement, and laws should protect the weaker part of this legal relationship. Like the French doctrine has stated, in order to reduce the natural inequality between the economic strength of the employer and that of the worker in a working relationship, employment law should protect the worker , as a legal tool of the working class [3] In order to accomplish this goal, civil law jurisdictions have developed some special principles, that we mention briefly, and that can be complemented by environmental law principles such as “sustainable development”.

One of the main principles developed by the Supreme Court of Spain in 1974, shared by most Labor Tribunals in Latin-America over the past decades, is the “in dubio pro operario” principle, which states that if there is a considerable doubt in the sense of a norm, the judge should prefer the sense that best protects the worker, or that is more suitable to the worker or the union.

Another fundamental principle in civil law tribunals is “primacy of reality”, which means that facts prevail over the forms and appearances of a contract. It prevents contractor bidding fraud. If the worker is biding by a schedule and works as an ordinary worker fellow, regardless of the nature of its contract, he should be treated as a worker and have all his/her rights for granted. In this situation, the constitutional right to work has being violated in the private sphere and tribunals normally grant plaintiffs lawsuits. The principle of primacy of reality can be used as well for environmental damages in the workplace. Public environmental audits might lack efficiency, and workers are entitled to point this out when the polluter element has not been resolved and they are exposed to pollution as well.

Another important principle is the principle of reasonableness, which is understood as that criterion closely linked to justice and is in essence same of the constitutional rule of law, which expresses as a mechanism of control or interdiction of arbitrariness in the use of discretionary powers of employers. Reasonableness should be used too if there is an environmental debate that could end in a collective bargain clause.

The principle of inalienability of rights, which denies legal validity to any act of the worker that implies a waiver of their labor rights, constituting a limitation to the autonomy of the workers will. This principle seeks to prevent the worker, pressed by the need to get a promotion, from accepting the diminishing of his/her rights by imposition of the employer. It can be used by workers anytime they are forced to work under unhealthy or great polluting conditions.

And finally, the principle of continuity. This principle motivates the continuity of the working legal relationship, regardless of the transformation of the enterprise. The employment contract is supposed to last in time, promoting stability. The principle of continuity is closely linked to the vitality and resistance of the employment relationship even though certain circumstances may appear as a reason or motive for its termination. It determines not only the right of the worker to be reincorporated to employment but also to have all those rights with an economic content recognized the enjoyment of which would have corresponded to him during the working period.

The common law system, in contrast, is a legal system where judicial precedents take a major part in interpreting and executing statutes and general laws, and where the principle of “stare decisis” takes an important role as well. Historically uncodified, common law has developed important standards and principles through public policy and legislation. Professor Richard Epstein [4] said that common law has a stretched link with private law, and thus a “coherent theory of private law, with well developed principles of contract and tort, can govern labor relations”. Nevertheless, public policy experiences such as the New Deal in the United States, and the recognition of labor unions through legislation such as the National Labor Relations Act (1935), The Clayton Act (1914) and Fair Labour Standards Act (1938) developed labor law into a hole and more complex category, more effective in the fair treatment of labor relationships. This was also the case in England; The right of unions of freedom of association, the right of collective bargaining and the right to strike was recognized by The Trade Union Act (1871) and The Trade Disputes Act (1906). Later, Contracts of Employment Act (1963), The Redundancy Payments Act (1965) and the National Minimum Wage Act (1998) evolved labor law into a more protective scheme for workers. Therefore, public policy in labor has always challenged the private sphere of labor contracts worldwide.

Despite the differences between civil and common law systems, both systems share an important place in standards and principles, which have influenced and have motivated judicial reasonings that eventually end up in new rules of law. Both systems share the principle of good faith, the importance of preventing contractors fraud schemes that hide a truly working relationship, protection against unlawful discrimination or unlawful termination, freedom of association and the right of a collective bargain, the elimination of all forms of forced or compulsory labor, and the effective abolition of child labor. In addition, these principles in labor law have combined with the compulsory rule of equal treatment promoted by Human Rights Covenants, which include Civil Rights and Economic Rights.

Climate change is a task for the international community, and for workers as well. It harms the possibility of developing the scope of Human Rights and Labor Standards due to the economic loss it cause. In that sense, the private sphere and labor contracts cannot neglect this situation. The Rio Conference of 1992 explicitly stated that "Trade unions are essential factors to facilitate the achievement of sustainable development, taking into account their relationship with industrial changes and the protection of the labor environment itself". Therefore, workers have to be involved in climate change demands within the workplace, in order to prevent environmental catastrophes, and a great loss of productivity.

Environmental law is concerned not only about nature, but also about the population that live on it. In America, there are four main principles in this field, linked with public policy schemes. The first of it is, and most important, is sustainable development. The sustainable development principle implies that the economic way of production should meet all possible mechanism to be respectful with nature and with people of the present, without compromising life standards of the future generations. This principle challenges lower budgets in the management of industrial waste, and extremely polluting schemes in factories, which need the participation of workers and unions in identifying these potential risks for the environment and the whole community.

The second principle is integration of public policies in environmental matters. Integration is a complex principle, normally stated as a rule of reference or aspiration of a normative closure. This can allow integration of environmental regulations and standards with labor law standards that protect human working rights, and the right of a safe and eco-friendly environment, as well as the possibility of involving unions in environmental affairs.

The third is the precautionary principle, that motivates a great preventive action in the face of uncertain environmental damages. It is not an exclusive duty of policy-makers, but also to the civilian population.

There are other environmental principles as the rule of “polluter pays”, cumulative impacts, intergenerational equity, and public participation. These principles take place in both common law and civil law systems, as a clear demonstration that tribunals and jurisprudence are the key element of the modern practice of law. These principles can be applied in labor issues; workers are entitled to evoque them when there is a serious concern about the industrial pollution and environmental problems. Environmental principles, as well as labor principles, are not a closed list, because they can evolve and tribunals might identify new ones. [5]

In conclusion, we can say that environmental concerns of greater climate change effects destroying much of the workplaces, motivates a serious approach between environmental law and labor law in both civil and common law systems. One way of making this interconnection possible is the use of principles of both environmental law and labor law in the private sector. As stated by Doorey, the concept of Just Transition Law or even Climate Change Law need to include a serious concern about labor law and workers. In order to accomplished that duty, workers should get involved in environmental issues in the workplace, as well as their attorneys. There are legal tools to make it happen.

References:

1. David Doorey “Just Transition Law: Putting Labour Law to Work on Climate Change” (2017) 30(2) Journal of Environmental Law and Practice.

2. “Influence of the Roman Law on Formation of the Romano-Germanic Legal Family” Safia Hamitovna. Review of European Studies; Vol. 7, No. 6; 2015 ISSN 1918-7173 E-ISSN 1918-7181 Published by Canadian Center of Science and Education.

3. M. PATTE, Caractéristiques, exigences et tendances du droit du travail, in J.T.T., 1975, p. 17 and G. LYONCAEN « Du rôle des principes généraux du droit civil en droit du travail »

4. Richard A. Epstein. “A Common Law for labor relations. Critique of the New Deal Labor Legislation," 92 Yale Law Journal 1357 (1983).

5. Michael Faure. “Principles of Environmental Law ». Elgar Encyclopedia. 2008.