The second obstacle to the commodification of working capacity is that this capacity cannot be replaced. By definition, the exchange of a good means alienating these goods so that the buyer can appropriate them as his own private property. However, an individual`s ability to choose and act on their choices is inalienable. Compare this to work that is not done under the authority of another and is interchangeable in its objectified and fulfilled form. For example, the work of a computer programmer may be sold by the programmer in the form of the program.10 However, the employment relationship by definition includes the sale of one`s own ability to work, not the work itself. This capacity is inalienable on the part of the individual who possesses it – it is his vitality, vitality and means of self-determination (Marx 2005).11 When concluding the contract, the manager and the employee together answer a series of questions. Useful questions about awarding contracts can be: Now, apply this to employment at will, when the employer has promised an employee a right or benefit, but then wants to take it away. Imagine, for example, that the employer makes a clear written promise to senior executives that they will have job security without major disruption to their business, a promise that the court and the employer recognize creates a binding commitment.124 It seems that the reasonable expectation of the parties is that the employer has negotiated that managers should work until retirement. If the courts applied unilateral contractual principles, the employer could not withdraw the benefit until the managers had had the opportunity to provide their negotiated service.
It could not fire employees before they retired.125 If the employer promises its sales representatives until their 60th birthday. To pay a 10% commission, it seems that the employer has negotiated for employees to continue working for him at least until the age of 60. Firstly, the reconstruction of employment as a series of daily unilateral treaties does not solve the problem of the absence of an ex ante agreement. It is always an agreement to work for another under the control of the other, if only for one day. Thus, it is always an agreement to allow the other party to choose the company ex post. Two features of contract law also play a role in ensuring that contractual rules do not interfere with the employer`s power: the broad definition of consent in contract law and its indifference to the equity of a stock exchange. For example, many courts will find that an employee accepts an arbitration agreement by not terminating her employment after the employer informs her that she will waive her right to go to court.4 And the employer meets the requirement that it provide something to the employee in return by not firing her immediately. In the employment situation, employees are often unaware of the employer`s policies when they start working, so it is not true that the employer`s issuance of the policy caused the employee to work or continue to work – it is difficult to say that the employee “accepts” the employer`s offer for their policies, starting or continuing to work if policies are issued by supervisors or by email.106 Similarly, the employer generally does not issue a written policy in response to the employee`s negotiations, at para. B example if the employee threatens to take dismissal without the policy.107 However, the employee does not make a contractual offer to the employer simply by working (baking cookies). Arguments that the employer`s consent to contractual obligations is evidenced by its conduct face similar problems in contract law.108 Access to employment.
Such access may be fair or discriminatory. In the latter case, groups of workers may be excluded from employment or have different access based on their race/ethnicity, gender, age or any other characteristic. The affixing of the contractual label tends to deter the necessary regulation by pointing out that employment at will reflects the “freedom of contract” of the parties and should therefore not be disturbed by legislators and the judiciary. Thus, contractual designation makes it difficult for decision-makers to increase wages or prescribe benefits and for judges to interpret legislation protecting workers in a manner consistent with the purpose of the law. No attempt to rationalize the employer`s power to amend the agreement makes sense in contract law. The fact that the dominant approach is a sui generis doctrinal innovation, stimulated by the specificity of employment, illustrates the incompatibility between contract law and employment at will: courts are unable to apply contract law in a comprehensible manner, convey enforceable expectations to employees, and protect the power of the employer.122 However, the ability to work is a “fictitious” commodity (Polanyi 1957).9 It is not used for sale to the produced market, nor is it interchangeable by a market transaction. These two dimensions of the status of labor as a fictitious commodity are the subject of power struggles between workers and capital. .