bluuebunny/crossref_metadata_2025 huggingface dataset:
Damages Liability of the EU for Harm Caused by Excessive Duration of Court Proceedings
Authors: Havu Katri , Kurki-Suonio Suvi
Published: April 2022

In January 2017, the European Union was ordered to pay damages to two companies because of excessively long court proceedings before the General Court, the first time such an order had been made. At this point, a number of EU Courts’ judgments that address damages liability for excessively long court proceedings can be found. According to the European Court of Justice, a damages claim is an appropriate and effective remedy in a case of a failure to adjudicate within a reasonable time. This contribution systematizes and analyses recent EU level case law regarding the excessive duration of court proceedings with damages as a remedy. A particular emphasis is placed on examining the relevant case law against the backdrop of existing EU damages liability law. We particularly study how the conditions of harm and causation are interpreted and applied in the EU level ‘excessive duration cases’. We discuss and summarize the theoretical and practical implications of the excessive duration liability case law, as well as highlight particularly interesting details from recent judgments.

EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law
Successfully Articulating National Constitutional Identity Claims: Strait Is the Gate and Narrow Is the Way
Authors: Millet François-Xavier
Published: April 2022

Article 4(2) Treaty of the European Union (TEU) has not played any autonomous role up to now. Cases involving that provision have not been handled differently by the Court than cases involving derogations to free movement. In this article, after an analysis of the existingcase law on Article 4(2) TEU, I make the case for a bolder and exceptional use of Article 4(2) TEU where genuine national constitutional identity claims (NCI claims) directly clash with provisions of EU law. I provide a normative framework of analysis to identify genuine NCI claims and determine how the Court should address them. ‘Strait is the gate and narrow is the way’ is certainly a relevant metaphor to capture the possibility for genuine NCI claims to be successful. In view of its own mission and constraints, the Court is only to accept well motivated, narrow claims that are strictly based on crucial and distinctive features of national law that are embedded in the national Constitution and do not run against the own constitutional identity of the Union.

Member State constitutional identity, Article 4(2) TEU, Extraordinary function, Constitutional conflicts, Instructions for use, Constitutional courts, Court of Justice, Balancing between national identity and fundamental rights, European Union constitutional identity, National and European constitutionalism
Part 1 – Stereotyped Assumptions versus Sex Equality: A socio-legal analysis of Equality Laws in the European Union
Authors: Cnossen Christine
Published: April 2022

This article seeks to evaluate the legal developments of the European Community in its attempts to eliminate sex discrimination and inequalities in treatment between men and women and to analyse, from a socio-legal perspective possible inefficiencies of the Community’s primary and secondary legislation on the issue. In the light of the Intergovernmental Conference and the European Community’s aspirations to become a fullfledged federal state, the social dimension of European Integration acquires relativeimportance from a legal, political as well as economic perspective.

In a second follow-up article the authors will attempt to provide a comparative analysis of the evolution of equality law and policy and the social parameters in labour relations between men and women that exist in two alrerady established federal states, the United States of America and Canada.
Evolution and Trends in Industrial Relations in Central and Eastern European Countries
Authors: Casale Giuseppe
Published: April 2022

Abstract: The purpose of this comparative overview is to provide an analysis of recent trends, issues and challenges facing the labour law and labour relations systems in the countries of Central and Eastern Europe. One of the major difficulties in preparing such an overview arises from the great differences which exist in the countries of the region. Changes in collective bargaining and the laws which affect countries like Hungary, the Czech Republic and Poland do not have much in common with each other, while problems in law and collective bargaining in Albania and Bosnia and Herzegovina are quite different from those in Lithuania or Slovakia. In order to make the analysis meaningful, it is necessary in this overview to concentrate on certain fundamental problems in the light of the enlargement of the EU. Therefore, the report focuses on issues such as collective bargaining, the extension of collective agreements and labour dispute settlements.
The Codification of Russian Labour Law: Issues and Perspectives
Authors: Rymkevich Olga
Published: April 2022

Abstract: This article examines the new Labour Code of the Russian Federation adopted in February 2002. The main thesis of the paper is that the new Code undoubtedly contains many mechanisms intended to make labour relations and industrial relations in Russia much more flexible, so that, at least in broad terms, it can be considered deregulatory. By making labour law more flexible, the Russian Government has launched a legislative political platform aimed at recovering the effectiveness and efficiency of statutory rules, with a view to striking a ‘sustainable’ and ‘realistic’ balance between employee protection and companies‘ needs in the new socio-economic conditions.
Temporary Agency Work in Germany: Reflections on Recent Developments
Authors: Waas Bernd
Published: April 2022

Abstract: The author examines the recent amendment of the German law on agency work, arguing that the deregulation of the law in this field is not as far-reaching as it seemed at first sight. Moreover, the author notes that the principle of equal pay between hired-out workers and employees of the client-firm that was extended by the amendment gives rise to serious doubts. This is particularly true when taking into account the legal protection of the persons concerned provided under German Constitutional law.
Collective Bargaining Laws: Purpose and Scope
Authors: Davidov Guy
Published: April 2022

Abstract: This paper argues that the right to bargain collectively should be given to every person working for others for pay who suffers a significant degree of democratic deficit or economic dependency in the work relationship. This would constitute a much broader scope of application compared with the current situation in most countries. This change is justified by an inquiry into the purpose of laws allowing and promoting the practice of collective bargaining, on the one hand, and the purpose of laws preventing cooperation among potential competitors, on the other. Collective bargaining laws promote workplace democracy, redistribution of resources, and efficiency. It is shown that, with regard to the broadened group of workers suggested here, there is no contradiction with the goals of competition law.
The Bottom Line of European Labour Law (Part I)
Authors: Fuchs Maximilian
Published: April 2022

Abstract: When the Treaty of Rome came into force in 1958, nobody would have dared prognosticate such a dynamic development of the body of legislation which we today are accustomed to calling European Labour Law. It is well known that the Founding Fathers did not take the line of enhanced social policy on the European level and therefore assigned the area of labour law only a very limited role. But due to changes in the political and economic arena at the beginning of the 1970s, a social policy approach gained momentum which did not replace the dominant economic approach, but at least came alongside this model and had a strong impact on policy-making. It resulted in several pieces of legislation, the nature of which was mainly crisis management (Directives concerning employer insolvency, collective redundancies, transfer of undertakings). The further development of European Labour Law is characterized by this tension between economic and social requirements and this tension explains the ups and downs of European Labour Law. The need to balance economic and social necessities is mirrored also in the jurisprudence of the ECJ which in the shaping of European Labour Law has been of the utmost importance. The same is true for the activities of the European social partners who finally became part of the law-making process on the European level. The European Employment Strategy constitutes a new challenge for labour legislation which might be forced to give preference to reducing protection standards in order to reach higher employment levels. But so far the social rights approach – also adopted in the Charter of Fundamental Rights – seems to continue its influence.
Interpreting Employment Contracts: Judges, Employers, Workers
Authors: Deakin Simon
Published: April 2022

Abstract: This paper reports findings from a survey designed to estimate the numbers excluded from employment protection in the UK by the ‘employee’ test and to examine, through qualitative research, perceptions of the process of employment contracting. The survey evidence shows that approaching one third of the labour force does not fit neatly into the categories of ‘employee’ and ‘self-employed’. The case studies suggest that there is a considerable disjunction between the assumptions of choice, control and risk which underlie the legal tests, and the perception of these issues by workers whose employment status is most in doubt.
Government Responsibility and Bargaining Scope within Article 4 of ILO Convention 98
Authors: Boonstra Klara
Published: April 2022

Abstract: This article reviews two decisions made by the Committee on Freedom of Association (CFA) of the International Labour Organisation concerning limitations on collective bargaining. In recent years many governments have been inclined to take a firmer grip on labour conditions that have an impact on government social policy, such as the retirement age. While in the years of economic prosperity these matters were left to the social partners, the current recession causes governments to regain control, not so much by drawing up statutory law, but by determining the extent to which the employer and worker are allowed at an individual level to deviate from otherwise binding collective labour agreements. In these two cases the collective bargaining partners contested the government’s right to determine the level of bargaining and filed a complaint with the CFA. In its decisions, the CFA explicated the appropriate interpretation of the ILO standards concerning the right to bargain collectively and the determination of the level of bargaining.
For Diversity, Against Discrimination: the Contradictory Approach to Age Discrimination in Employment
Authors: Sargeant Malcolm
Published: April 2022

Abstract: This article argues that there is a contradiction contained within the Framework Directive on Equal Treatment in Employment and Occupation and the UK Government?s proposals for implementing it. There is a distinction between the business justification for encouraging diversity in the workforce and the human rights justification for ending age discrimination. The first approach weakens the latter by legitimising continued discrimination on the basis of age. This is especially important because there is a close relationship between age discrimination and discrimination on the grounds of sex, race and disability.
Labour Relations at the Workplace: The Experience of Southern Africa
Authors: Madhuku Lovemore
Published: April 2022

Abstract: Labour relations at the workplace raise fundamental issues, including the following: To what extent does the labour relations system recognise and promote the existence and functioning of worker organisations other than trade unions? What is the institutional relationship, if any, between national trade unions and shopfloor workers? Does the labour relations system establish and/or recognise shopfloor collective bargaining? Are there any dispute settlement mechanisms which are specific to the shopfloor? Southern Africa provides a rich display of how labour relations systems respond to these issues. This article analyses shopfloor labour relations in eight Southern African countries and argues that while no uniform system exists, trade unions have been given a firm grip over shopfloor labour relations.
When Labour Relations Deregulation is not an Option: The Alternative Logic of Building Service Employers in Quebec
Authors: Jalette Patrice
Published: April 2022

Abstract: It is generally considered that globalisation is creating pressures on employers toward a deregulation of labour relations. This paper explores how institutional advantages resulting from a labour relations policy may have benefits for employers that outweigh their costs. To that end, the author examines the building services sector in Quebec which is covered by the decree system, a working conditions extension mechanism unique in North America. The comparative institutional advantages of the decree system help employers to secure greater labour market stability and low-inflation wage settlements, which accounts for the relatively good economic performance of the sector.
The Rights of Illegal Workers Injured at Work: a Study of the Judicial Dilemma in the United States
Authors: Guthrie Robert , Taseff Rebecca
Published: April 2022

The engagement of ‘non-citizens’, ‘aliens’, and ‘undocumented workers’ for work raises a number of delicate employment law and policy issues. This paper considers the attitude of the courts in the United States (US) to the question of the rights of workers who work contrary to immigration laws (illegal workers)1 and will focus on the recent case law in relation to workers’ compensation entitlements. In the US the case law on the rights of illegal workers to workers’ compensation is unclear and heavily dependent upon local State legislation and judicial attitudes. It has also been heavily influenced by the Supreme Court decision of Hoffman Plastic Compounds v National Labor Relations Board, which dealt with the rights of undocumented workers to make claims for wages consequent upon unfair termination of the employment contract. This paper explores the different judicial and legislative approaches to the rights of illegal workers to workers’ compensation, and proposes a possible humanitarian response to the difficult problem of the injured illegal worker.
Transferring Employment between the Public and Private Sectors in the United Kingdom: Acquired Rights and Revising TUPE
Authors: Johnson Nigel , Williams Kevin
Published: April 2022

This paper analyses the reasons for the United Kingdom’s longdelayed response to the European Union’s Acquired Rights Directive. It assesses the British government’s overdue updating of the domestic legislation in 2006 in line with the latest version of the Directive, attributing its dilatory response to a combination of technical legal difficulties and conflicting political objectives. The paper concentrates on the ‘privatisation’ of public services, explaining the most recent protection now available to workers whose jobs are out-sourced to the private or voluntary sector. Member States contemplating reform of their own regulatory regimes may find the British experience instructive.
Mergers and Amalgamations in India: Protecting Labour in Times of Change
Authors: Rajadhyaksha Meghna
Published: April 2022

This article studies the law protecting workers during the merger or amalgamation of a company in India. It discusses the provisions of company law and labour law that operate in the area, with a discussion of case law on the point. The author finds that in light of the constitutional provisions in India, that favour protection of labour interests, the law is indeed inadequate and recommends the reform of corporate and labour legislation to provide for consultation requirements, participation of the workers and protection of their interests on transfer to the amalgamated company.
Teaching Problem–Solving and Preventive Law Skills through International Labour and Employment Law
Authors: Garcia Ruben J.
Published: April 2022

This essay describes how well problem–solving and preventive law principles apply in the teaching of international labour and employment law. This is because the subject itself crosses disciplinary and geographical boundaries. Students are taught about the importance of the lawyer’s role as counselor, rather than simply as litigator, which is at the centre of the model of the lawyer as a problem solver.
Collective Labour Law after Viking, Laval, Rüffert, and Commission v. Luxembourg
Authors: van Peijpe Taco
Published: April 2022

The judgments of the European Court of Justice (ECJ) in the International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (hereinafter ‘Viking’), Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others (hereinafter ‘Laval’), Dirk Rüffert, in his capacity as liquidator of the assets of Objekt und Bauregie GmbH & Co. KG v Land Niedersachsen (hereinafter ‘Rüffert’), and Commission v. Luxembourg cases have given rise to much criticism. The ECJ has given priority to free movement principles over fundamental collective labour rights. In this contribution, the author analyzes the consequences of these judgments for the collective labour law of the Member States. Some Member States will have to adapt their labour law. It must not be overlooked that the ECJ also offers support for collective labour rights. For the fi rst time, the right to bargain collectively and the right to take industrial action have been recognized as fundamental rights in EU law. Moreover, the ECJ explicitly recognizes that the protection of jobs and employment conditions of workers is an overriding reason of public interest, which can justify collective actions restricting the fundamental freedoms of the Treaty.
Health and Safety in the European Social Charter
Authors: Lasak Katarzyna
Published: April 2022

Work insecurity characterizes the era of globalization. The hazards arising from work exist at all times and in every part of world. Whereas International Labour Organization (ILO) standards and domestic statutory mechanisms have contributed to the reduction of many risks and dangers, a countertrend toward market conditions has multiplied and increased them in number. As this is a growing problem, some countries are making efforts to solve it in different ways. One of the strategies agreed upon at a European level is to strengthen the principles of labour law by means of protection offered by international human rights legislation. Thus, the European Social Charter has been enacted. There is no other comparable system in any other region. This paper aims to examine how useful the Social Charter is in reality.
The Law of Harassment in the UK: A Growing Concern
Authors: Howes Victoria
Published: April 2022

This article considers recent changes to legal provisions governing harassment at work, in particular sexual harassment, in the UK, in the light of EU Directive 2002/73/EC, and the remedies available in the courts and employment tribunals. This article then provides a statistical profile of a total of 21,335 sex discrimination cases brought to nine employment tribunals in the UK between 2003 and 2008, highlighting the fact that the claims submitted by employees are successful in only a small percentage of cases, due to the fact that many cases are withdrawn or settled out of court, and the fact that many claimants do not have legal representation, whereas nearly all of the defendants have the benefit of legal representation in hearings at the employment tribunal, enabling them to present their evidence in a more effective manner. This is particularly important in cases of this type, where witness credibility is crucial to successful outcomes, as highlighted by the cases cited by the author.
New Light through Old Windows: Restraint of Trade in English, Scottish, and Australian Employment Laws(-) Emerging and Enduring Issues
Authors: Floyd Louise , Cabrelli David
Published: April 2022

The nature of the study to be pursued in this article concerns the extent to which the common law systems of England and Australia contain principles or rules designed to impinge on an employer’s freedom of contract or legitimate trading interests in order to promote the ability of an employee to trade, work freely, and enjoy the benefits of his/her labour and innovations. This will entail spelling out the principal elements of both the English and Australian concepts and outlining the differences between them in light of new problems that have emerged as a result of recent developments in economic and social conditions.
Home Work, Telework and the Regulation of Working Time: A Tale of (Partially) Similar Regulatory Needs, in Spite of Historically Rooted Conceptual Divergence
Authors: Nevens Koen
Published: April 2022

In this paper, the author argues that, at the conceptual level and as opposed to ‘traditional’ home workers, teleworkers can be subsumed under the (continental) concept of employee. To this end, the author illustrates how the adoption of the notion of subordination as a definitional element of the contract of employment gave rise to an incongruence between the concept of employee and the notion of home worker, an incongruence that is far from apparent with regard to teleworkers, who may be subjected to the ubiquitous control of their employer by means of information and communication technology (ICT). According to the author, this conceptual divergence does not dispense with the need, at a regulatory level, to take into account the particularities of some or all forms of telework, in spite of the principle of equal treatment enshrined in Article 4 of the European Framework Agreement on Telework. This point is illustrated with respect to the regulation of working time in Belgium and France.
The ILO’s Shift to Promotional Principles and the ‘Privatization’ of Labour Rights: An Analysis of Labour Standards, Voluntary Self-regulation and Social Clauses
Authors: Royle Tony
Published: April 2022

This article examines the existing quasi-legal means by which international labour standards may be protected. This article considers the nature of the challenge that global capital creates for labour, the development of the International Labour Organizations (ILO’s) labour standards, and the consequences of its shift towards promotional principles, the growth of corporate voluntary initiatives by multinational corporations (MNCs), and finally the associated debates around the inclusion of social clauses in trade agreements. The analysis suggests that the ILO’s shift to ‘promotional principles’ and the formal acceptance of voluntary self-regulation from the late 1990s has not significantly improved the situation for workers but was a pragmatic response driven in part by US policy and the increasing marginalization of the ILO within the global system of economic governance. It is argued that even if the many political obstacles could be overcome, the result of including social clauses in World Trade Organization (WTO) trade agreements may not be straightforward. In conclusion, it is argued that in some respects the existing system has ‘privatized’ labour rights.
The Social Quality of National Employment Policies Put to the Test
Authors: Klosse Saskia
Published: April 2022

This article outlines measures adopted in national social security schemes to promote the (re)integration into work of people with disabilities. The measures are evaluated in the light of broader reform trends, stemming from EU policies to foster labour market participation. Since the beginning of this century, the EU has played an active role in confronting national authorities with the need to design employment policies in which competitiveness and economic growth go hand in hand with measures that ensure that disadvantaged groups have equal access to the labour market and receive effective support to access employment. Recent statistical data show, however, that the employment position of disadvantaged groups is still weak. This would seem to suggest that the social quality of national schemes to foster labour market participation falls short of expectations. To gain insight into this matter, thirty European countries were asked to draw up national reports on the employment position of people with disabilities within the framework of the EU-funded MISSOC project. This article presents a synopsis of the main findings from these reports. It starts with an overview of relevant developments at the European level (section 1). A framework for the evaluation of the social quality of national programmes to promote the (re)integration into work of people with disabilities is then developed in section 2. The results of the evaluation are presented in section 3, thereby focusing on measures addressing people with disabilities on the one hand (sections 3.1 and 3.2) and measures addressing the employer on the other hand (section 3.3). The evaluation winds up with some concluding observations with regard to the way in which the social dimension of employment policies has been implemented in national schemes to promote the (re)integration into work of people with disabilities (section 4).
The Effects of Anti-age Discrimination Legislation: A Comparative Analysis
Authors: Wood Geoffrey , Harcourt Mark , Wilkinson Adrian
Published: April 2022

The central aim of this article is to evaluate, compare, and contrast the perceptions of key stakeholders with regard to the likely effects of anti-discrimination legislation on employment relations practice in a liberal market economy, that of the United Kingdom. It is based on a series of in-depth interviews conducted around the time of the implementation of the legislation, compared and contrasted with a similar panel of interviews conducted in New Zealand. In that country, which has similar legal traditions to the United Kingdom and many similarities in terms of employment relations, anti-age discrimination legislation has been in place for some years, so the comparison provides useful insights.
Young Workers and Age Discrimination
Authors: Sargeant Malcolm
Published: April 2022

The Framework Directive on Equal Treatment in Employment and Occupation applies to all those in employment, with respect to preventing discrimination on the grounds of age. This article is concerned with the effects of this upon young workers, rather than older workers who are the traditional focus for much of the research on age. Consideration is given to relevant cases at the European Court of Justice (ECJ), as well as in the UK. There is also an examination of the limited research done on this subject and a justification of the need for more.
Trade Unions, Lisbon, and Europe 2020: From Dream to Nightmare
Authors: Hyman Richard
Published: April 2022

On 24 November 2009 the European Commission published its consultation paper on the EU 2020 strategy. This article analyses European trade union responses, and contrasts the very limited participation in the exercise with the greater response to the Green Paper Modernising Labour Law three years earlier. It argues that a key explanation is growing trade union disenchantment with the evolution of the 2000 Lisbon Strategy - embraced remarkably uncritically at the time - as it developed over the subsequent decade. In effect, the neoliberal implications of European integration have become increasingly unencumbered by any pretence at a 'social dimension'. It is far from clear that trade unions have as yet a strategy to respond to the far harsher European policy environment.
Transnational Temporary Agency Work: How Much Equality Does the Equal Treatment Principle Provide?
Authors: Schlachter Monika
Published: April 2022

The EU Temporary Agency Work Directive establishes an equal pay/equal treatment principle for agency workers that lays down a specific standard of equality, different from the one applied under anti-discrimination law. The aim of this paper is to examine the meaning of this recent equality principle, especially for transnational agency workers. For this purpose the conciliation of the agency work directive with the Posting of Workers Directive (PWD), providing only a minimum level of employment conditions, is examined. In principle the agency directive appears to apply a more far-reaching standard of equality, allowing transnational agency workers to compare their contractual entitlements with what they would have been entitled to had they concluded an employment contract directly with the user undertaking. This seems to be the result of focusing primarily on the factual aspects of work: equal conditions should be provided for co-workers doing roughly the same work in the same place. The legal status of the actor concluding the relevant contract with the worker does not seem to be decisive in these triangular contractual relationships. But this standard will presumably not be applied on a regular basis as the directive allows for various exceptions. Stretched as widely as possible, those exceptions might have a significant impact on the equal treatment principle. The directive might then be rendered incapable of providing more than the minimum standard guaranteed by the posting directive. However, there remains a chance of avoiding this outcome. The exceptions enshrined in the agency directive contain a safeguard clause guaranteeing 'overall protection' of workers, that could be interpreted in such a way as to disallow any reversion to a mere minimum standard. This paper argues that it is necessary to follow this interpretation in order to maintain a meaningful level of protection.
Swedish Employment Protection in Times of Flexicurity Policies and Economic Crisis
Authors: Rönnmar Mia
Published: April 2022

In the wake of increasing globalization and economic and financial crisis, the balance between flexibility and security - flexicurity - is central to European employment policies and the modernization of EU labour law in the different Member States of the EU. Common principles of flexibility have been adopted, and different pathways to flexicurity have been outlined. The aim of this paper is to critically analyse developments in Swedish employment protection regulation, with a special focus on dismissals for reasons of redundancy, in light of the EU flexicurity discourse. The notions of employability and equal treatment come to the fore. Central research questions involve the design and content of employment protection regulation and employment protection and employability within collective bargaining and the industrial relations system. Attention is paid to recent changes and developments in legislation, case law and collective bargaining, and to whether employment protection is being deregulated. The paper integrates labour law and industrial relations approaches, and encompasses analyses of legal materials at different levels, as well as industrial relations aspects.
The Still Complex Relationship between the ILO and the EU: The Example of Anti-Discrimination Law
Authors: Seifert Achim
Published: April 2022

This article examines the relationship between the ILO and the EU as an example of the complex interactions between social standard setting at the global level and on a regional scale. Even though the two legal orders are independent and autonomous, there are a number of interactions between them. After outlining first the institutional framework and the various mechanisms of co-operation between the ILO and the EU, the article focuses on anti-discrimination law as one significant example of substantive law in the relationship between the two legal orders. Thus, EU-law has not only promoted the implementation of (certain) ILO standards in the field of anti-discrimination law, but it has also come into conflict with certain ILO standards, in particular with Convention 111.The main argument is that co-operation between ILO and EU needs to be strengthened in order to avoid further conflicts between the two legal orders.
The Contribution of Labour Law and Non-discrimination Law to Empowerment and Social Justice in an Unequal Society: A South African Perspective
Authors: Smit Nicola
Published: April 2022

The tragic events at the Marikana mine ( North-West Province, South Africa) in 2012 again underlined the vast inequalities that persist in South African society. Significant income differentials and disparities in quality of life remain pervasive in society, regardless of the fact that the statutory framework addresses unfair discrimination during recruitment, employment and termination. The South African regulatory framework extends beyond the workplace as a result of the Constitution that includes a Bill of Rights, along with generally applicable equality provisions, skills developments legislation, black economic empowerment legislation and sector-specific codes of conduct and charters. Regardless of this vast regulatory system, the achievement of equality or, arguably, a socially just society remains an elusive ideal for many South Africans. This contribution provides a brief overview of the statutory framework for promoting equality and preventing and eliminating unfair discrimination in South African workplaces. The contribution will highlight certain challenges that remain in the area of labour equality laws with regard to conceptual and application issues, and will argue that labour law in itself cannot address the problems facing a highly unequal society such as South Africa. However, where there are other non-discrimination laws and empowering statutes in place, greater emphasis must be placed on the coordination and integration of all relevant statutory instruments and on cultivating fundamental values and rights across the wide spectrum of society.
The Internationally Recognized Right to Strike: A Past, Present and Future Basis upon Which to Evaluate Remedies for Unlawful Collective Action?
Authors: Novitz Tonia
Published: April 2022

The availability of remedies for unlawful collective action is determined, under international law, by the impact which they have upon the ability of workers to organize collectively to defend their economic and social interests. In this way, the idea of a 'right to strike' operates as the basis for assessment of the legitimacy of remedies. This approach has been taken by the International Labour Organisation (ILO) supervisory bodies and transmitted to the bodies responsible for supervision of Council of Europe human rights instruments. Such an approach has, perhaps unsurprisingly, led to criticism of the potentially far-reaching remedies available to employers following the Court of Justice judgments in the Viking and Laval cases, which extended European Union (EU) free movement principles in ways that allow employers to prevent or penalize what would otherwise be regarded domestically as permissible industrial action and which compromise the right to strike. Two key examples are punitive financial sanctions which can be applied in Sweden and the scope in the UK for injunctive relief and unlimited compensation for employers. The difficulty is that ILO recognition of a right to strike is under threat by the employers' group, which is now objecting to the continuation of ILO jurisprudence which interprets ILO Convention No. 87 so as to link freedom of association and the right to strike. In this manner, the International Organisation of Employers (IOE) seeks to challenge the application of past ILO findings in European and domestic contexts. There would seem to be both a legal and a political battle to be fought in the ILO to defend its normative pedigree. If support for collective action is to be maintained, it may not be sufficient to look only at the past, but towards present challenges and manifold options for the future.
The Paradigm of Sustainability in a European Social Context: Collective Participation in Protection of Future Interests?
Authors: Novitz Tonia
Published: April 2022

The treatment by the European Union (EU) of sustainable development, whether concerning economic, social or environmental protection (or some combination of the three) is normally viewed in the context of EU external relations. The aim of this article, however, is to consider the implications of the EU’s internal commitment to sustainability, as required by Article 3(3) of the Treaty on European Union (TEU), addressing the extent to which this provision is capable of being realized in the social context of labour relations. It is argued that sustainable development is an inherently dynamic process requiring broad-based participatory processes, including collective bargaining by trade unions. However, to fulfil this participatory function, trade unions must be allowed to address and bargain over social policy for the future. Unfortunately, what emerges is the lack of positive support in EU and European Convention on Human Rights (ECHR) case law for workers’ collective voice which looks forward in the way that sustainable development necessitates. This is evident from judicial determinations on the scope of entitlements to participation in information and consultation mechanisms and collective bargaining. It is also apparent from case law concerning the extent of legitimate aims for collective action and the enforceability of dynamic clauses in collective agreements. Further, the outlook for a future policy shift in the EU does not look promising. More needs to be done at European level to promote workers’ collective participation in building sustainable solutions for the future.
Sustainability, Social Rights and International Trade: The TTIP
Authors: Perulli Adalberto
Published: April 2022

This article analyses the prospects opened up in the social field by the negotiation on the Transatlantic Trade and Investment Partnership (TTIP) between the European Union (EU) and United States (US), with reference to labour law and social sustainability. Trade integration between the two partners should lead to an inter-normative approach, incorporating Fundamental Social Rights into the Treaty. The author proposes the inclusion of a chapter dedicated to compliance with labour rights, containing a social clause inspired by Article 20 of the General Agreement on Tariffs and Trade (GATT), in accordance with the negotiation directives. The social clause should include references to the ILO Core Labour Standards, individual and collective labour rights, Corporate Social Responsibility (CSR), and the regulation in a social perspective of Foreign Direct Investment (FDI).
Hard Law Makes Bad Cases: The International Labour Organization (Nervously) Confronts New Governance Institutions
Authors: Langille Brian
Published: April 2022

The struggle between hard and soft law for the attention of labour lawyers is ongoing and the results are mixed and controversial. The title for this article is a play on the common lawyers’ somewhat dubious saying: ‘hard cases make bad law’. My point is I think a better one: insisting upon hard law when that is neither desirable nor possible is a recipe for bad results in concrete cases. My view is also that this debate about hard and soft law is very unhelpful unless it is placed in the clear light of a good answer to the question ‘what is international labour law for?’. Only when we have understood what the task at hand really is can we address the question of what tools we need to deal with it. This article uses two sorts of recent controversies at the ILO (labelled ‘internal’ and ‘external’) to explore labour law’s current hard/soft dilemma.
Coercion and Freedom in Labour Law: American, Canadian, and Israeli Perspectives
Authors: Eshet Edo
Published: April 2022

This article takes as its starting point the fact that we live in democratic and progressive societies, and all need to participate in social structures. Whether we like it or not, we are all part of a political and social organization, just as we are part of multiple social communities. As Alexis de Tocqueville observed, as individuals in a given society, our associative efforts should be our strongest means for action and self-fulfilment (See Alexis de Tocqueville, Democracy in America (1835). ). Social structures need to solve collective action problems, to facilitate collective action and safeguard the participants’ rights. Collective labour is a social structure, and one that needs to solve collective action problems. Based on Kelsen’s analytical framework, this article argues that freedom for the individual in the collective labour context is a form of political liberty: the employee is granted the right to vote and to define his or her collective representative will. The majority requirement and the need to pay union dues represent an inevitable compromise between the need to act collectively and the need to ensure individual freedom. It is argued that the demand to ensure total freedom for those taking part in collective bargaining is basically a call for its destruction.
Why Do We Care? The Shifting Concept of Care in New Zealand and in the United Kingdom
Authors: Masselot Annick , Russell Roseanne
Published: April 2022

In recent years, there has been increased activity on the part of legislators and policy-makers as they attempt to reconcile paid work and unpaid care. This article explores the different approaches adopted by two common law jurisdictions: New Zealand and the United Kingdom. These case studies attempt to take a more expansive approach to the concept of care by purportedly disentangling the act of caring from traditional conceptions of motherhood. In the UK, this has been done by permitting mothers to transfer entitlement to caring leave to fathers but is underpinned by implicit assumptions that the primary responsibility for care will remain with the mother. In New Zealand, there has been a departure from historic reliance on gender identities to take a more gender-neutral approach by providing caring leave to whoever is a primary carer for a child regardless of biological connection. One unintended consequence of this has been that biological mothers have been left with the barest post-natal health and safety protection. These case studies reveal how difficult it is for legislators and policy-makers to devise care-giving protections that are not in some way tainted by the legacy of traditional care/home/women and work/market/men dichotomies and demonstrate the need for new models based on ungendered assumptions of universal care.

Care, Parental Leave, Maternity Leave, Family.
Implementation of the H&M Global Framework Agreement in Cambodia: Producing Outcomes for Industrial Democracy Despite a Challenging Context?
Authors: Norpoth Johannes , Kaltenborn Markus , Neset Carina
Published: April 2022

Global Framework Agreements (GFAs) are expected to be a more effective instrument for safeguarding collective labour rights in global supply chains than the unilateral instruments of private regulation adopted previously. The direct involvement of global union federations as contractual partners has significant potential in this regard. However, the effects of GFAs in supply chains have so far been under-researched. Since the exercise of collective labour rights is often prevented or undermined in producer countries of the Global South, and global supply chains are characterized by unstable and volatile relationships between global brands and local suppliers, the effective local implementation of GFAs faces particular challenges. Against this background, this article provides a qualitative analysis of expert interviews to examine how the implementation of the GFA of the global fashion brand H&M in Cambodia has influenced power relations between key stakeholders in the Cambodian garment industry and to what extent the agreement contributes to promoting ‘industrial democracy’ in the H&M supply chain in Cambodia.

Platform Work, Temporary Agency Work, Temporary Agency Work Directive, Atypical Employment
Dismantling the Trojan Horse in Singapore: A Critical Evaluation of the Implied Term of Mutual Trust and Confidence
Authors: Tan Kah-Wai
Published: April 2022

In the law of employment contracts, an implied term in law that has held sway over various Commonwealth jurisdictions is the implied term of mutual trust and confidence. The term gives rise to hidden but major implications for employment relations around the world. Yet few seemed to question its utility and foundational basis until the High Court of Australia’s unanimous rejection of the term in Commonwealth Bank of Australia v. Barker. In Singapore, it is also often assumed that the implied term is accepted law even though the legal position actually remains wide open. This article seeks to critically examine the genesis of the term and its operation in Singapore. It also argues that despite the Singapore High Court’s repeated endorsement of this term, there are compelling reasons in both policy and principle as to why such a term should be rejected in Singapore.

Employment Law, Implied Terms, Mutual Trust and Confidence, Contract Law, Singapore
The WTO and the Political Economy of Globalization
Authors: Hart Michael
Published: April 2022

“Today we have the opportunity to complete the construction of a universal trading system, bringing together industrial, developing and transition economies within the same agreed and enforceable international rules and disciplines. Seizing this opportunity will be a vital contribution not only to increasing global prosperity, but also to enhancing stability and peace.”

WTO, International Trade Trends and Statistics, 1995

“By signing the Uruguay Round of GATT, governments have further accelerated global economic growth and development by removing all constraints on trade, regardless of social, ecological, and moral implications. Instead of accepting the incontrovertible empirical evidence that economic globalization can only increase the problems we face today, governments, under pressure from the TNCs, insist in pursuing it still further.”

Edward Goldsmith, The Case Against the Global Economy, 1995
The UNESCO Convention on Cultural Diversity and WTO Law: A Case Study in Fragmentation of International Law
Authors: Wouters Jan , Wouters Jan
Published: April 2022

This article examines whether the UNESCO Convention on Cultural Diversity can be reconciled with the World Trade Organization (WTO) agreements by using existing techniques that deal with fragmentation of international law. It is argued that, although principles of interpretation and conflict clauses may help to ease tensions, they will never provide a full solution to this, in essence political, process of balancing values. Provisions calling for reliance on the Convention when applying other treaties are useful in protecting cultural diversity. Yet, it is highly uncertain whether WTO panels and the Appellate Body will be willing to consider the Convention as a tool for interpreting WTO provisions. It may have been a missed chance not to give a clear voice to UNESCO in the field of cultural diversity and not to establish a formalized “consultative link” between UNESCO and the WTO.
India’s Quest for Regional Trade Agreements: Challenges Ahead
Authors: Farasat Shadan
Published: April 2022

Backed by high economic growth, India has been entering into numerous regional trade agreements (RTAs) in the past few years. This article carries out a holistic analysis of these RTAs in light of India’s commitments at the World Trade Organization (WTO). The thrust of the article is on the challenges India’s RTAs currently face. An examination of India’s RTAs reveals that many of them may not be fully consistent with the applicable WTO rules. Additionally, the article reveals an “implementation deficit” in respect of India’s RTAs. The article suggests changes to the existing Indian foreign trade policy, so as to make India’s regional trade endeavours complimentary to the multilateral process at the WTO.