Singer - Jobs and justice

I have just read a very thoughtful article about employee participation (Joseph Singer, "Jobs and justice: rethinking the stakeholder debate". (1993) 43 University of Toronto Law Journal 475).

Singer argues that governmental intervention, in corporate governance and more generally, to promote fundamental employee rights (including rights to participate in the formulation of corporate policy) is both necessary and morally justifiable. He rejects the argument that this is an intervention in private contracting that would necessarily harm everyone by imposing higher terms than employers would be prepared to offer or employees would be prepared to accept (the unintended consequences type of argument). He points out that this logic does not apply when there is a radical inequality of bargaining power. More fundamentally, there are some things that are due as a matter of common decency. Consistently with a natural law approach, Singer’s starting point is to say that employment (by which he means, I think, stable and “well-paid” employment) is a prerequisite for participation in the economic system and is necessary for human flourishing. Thus, a just economic system will have to provide: access to well-paid employment (the earlier part of his article suggests that he means a wage that will support a family at least above subsistence level); some reasonable guarantees of job security; retraining and job placement when employees are “in transition”; and a right to participate in formulating corporate policy in a democratic manner.

Singer argues that stakeholder statutes are unlikely to deliver these employee rights. They enhance managerial discretion unacceptably but without being likely to deliver any corresponding benefit to employees. A stakeholder statute would be unlikely to give directors sufficient push to focus on employee interests. Singer doubts very much that courts in the US would be prepared to allow employees to invoke stakeholder statutes directly. More likely, they would give directors a discretion to take employee interests into account.

Singer does not believe that stakeholder laws are radical enough to make a difference. The answer, he suggests, will be some form of codetermination or giving employees ownership of voting shares or a combination of the two. Worker participation is justified, he believes, by analogy with democracy in the political system. There will be a need for governmental intervention across a range of policy headings including labour law (and perhaps education policy).