bluuebunny/crossref_metadata_2025 huggingface dataset:
Legal Rights of Employees in the Event of Dismissal: The New Zealand Situation
Authors: Geare Alan
Published: April 2022

Until 1973 employees in New Zealand had only common law protection against wrongful dismissal and this protection was both limited and of little value other than to senior managers. From 1973 to 1991 there was statutory protection for those employees who were union members, against ‘unjustified dismissal’. From 1991 this statutory protection was amended to include all employees, including senior managers. At the same time the common law was changing to provide increased opportunities for damages. In 2000 the government removed all common law rights of action against wrongful dismissal, requiring all action to be made under statute.
The Transfer of Undertakings: Striking a Balance Between Individual Workers’ Rights and Business Needs
Authors: Santoro-Passarelli Giuseppe
Published: April 2022

This paper examines the implementation of the directives on the transfer of undertakings, in whole or in part, with particular regard to the impact of individual workers’ rights of legislative provisions in Italy, the UK, Germany and France. A further consideration is that of information and consultation rights of workers in the event of a transfer, and EU provisions in the case of insolvency. Reference is made to a number of landmark rulings of the European Court of Justice, and it is argued that in this matter there is a considerable degree of convergence between the various national systems.
Some Problems and Themes in the Application in Member States of Directive 2001/23/EC on Transfer of Undertakings
Authors: Mcmullen John
Published: April 2022

In this article we examine some key areas giving rise to controversy in the application of EU Directive 2001/23/EC on the approximation of the laws of Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (the ‘Acquired Rights Directive’). In examining the case law and legislation of Member States we focus particularly on the case law and legislation of the United Kingdom and the Republic of Ireland, but case law and legislation of other EU Member States is referred to and compared where appropriate. We conclude that there are some common themes in the case law and legislation of the Member States on the Acquired Rights Directive. But we draw attention particularly to the legislation of the United Kingdom in the TUPE Regulations 2006, through which the UK has taken a bold step concerning the treatment of workers’ rights in relation to outsourcing from which, we suggest, lessons can be learned. We also argue the time is ripe for consideration whether share sale acquisitions should continue to be excluded from the Directive. The Acquired Rights Directive will shortly be reviewed by the European Commission and it is timely to review the practical application in Member States of the Acquired Rights Directive in their domestic case law and legislation.
Race and Racism – Why does European Law have Difficulties with Definitions?
Authors: Howard Erica
Published: April 2022

Abstract: Within Europe, a number of legislative instruments provide protection against racism and race/racial discrimination, but definitions of the terms race and racism are mostly absent from these instruments. This paper examines the different terms used in the different instruments and the definitions given. Particular attention is given to the question as to whether the grounds mentioned can be extended to cover discrimination based on race/racial or ethnic origin, colour, descent, nationality, national origin and religion or belief. Another question discussed is whether common definitions/interpretations of the terms race, racism and racial discrimination should exist in Europe and, if so, from which source these should be drawn.
The Impact of Global Employment Models in a Developing Country: Industrial Relations Management in Multinational Banks in Tanzania
Authors: Newenham-Kahindi Aloysius
Published: April 2022

Abstract: This paper examines Industrial Relations (IR) in a developing country under the influence of two foreign-owned Multinational Companies (MNCs). By means of qualitative research, two banks, one US-based, the other South African-owned, are studied to determine the influence of the firm and of the host country in shaping IR practices. The paper begins by discussing employment relations in Tanzania, and then focuses on how the banks are actively transferring their employment practices to their subsidiaries. Considering the challenges posed by the host country IR systems, the paper illustrates how Tanzania aims to strike a balance between IR practices in the two MNCs and the social and economic need to sustain employment.
Regulated Flexibility – Flexible Working Time Patterns in Germany and the Role of Works Councils
Authors: Seifert Hartmut
Published: April 2022

This article deals with some recent trends in the patterns of working time in Germany as well as in industrial relations. Flexible forms of working time, particularly working time accounts, are gaining ground. At the same time, their introduction promotes a decentralization of collective bargaining. The industrial relations system typical of Germany has become far more elastic: the company level is gaining regulatory powers, without the protective framework of collective agreements being completely abandoned. The example of working time accounts illustrates how the interplay between the two levels of regulation can fulfil the ever more disparate requirements of companies and employees. Companies can cast off the straitjacket of uniform contractual working time standards, while regulated flexibility prevents employees from being placed at the mercy of flexible working time arrangements decided arbitrarily by the employer. This changed working time model can be described as ‘regulated flexibility’. Time management has become a new area of negotiation for workplace representation bodies.
Czech and Slovak Labour Law — Protective or Liberal? Labour Law from the Split of Czechoslovakia to post–EU Accession
Authors: Koldinská Kristina
Published: April 2022

This paper examines recent developments, the present situation and future prospects for labour law in the Czech Republic and Slovakia. It is based on findings from a comparative study on the evolution of Czech and Slovak labour law during the period 1995–2005. The paper deals with the most important elements of labour law in the areas of individual labour relations, collective bargaining and employment policy. The main issue examined is the contrast between flexibility and rigidity in labour legislation in two new EU Member States.
Two Halves of a Whole: Teaching International and Comparative Employment Law
Authors: Zimmer Michael J.
Published: April 2022

While labour and employment law involves facets of both international and comparative law that are interesting and valuable, the best way to organize an advanced course for US law schools is to study both: Understanding of either is dependent on understanding both. The study of international labour and employment law at the level of the International Labour Organization (ILO) and regional international organizations such as the EU and the North American Free Trade Association (NAFTA) labour side accord take on real meaning and significance by showing their relationship with the national labour and employment laws of the major countries of the world. A unified international and comparative labour law course is an ideal way to develop and deepen the understanding that law students need to practice law in an ethical and professionally responsible way.
Job Security and Entitlements within Hong Kong’s Maternity Protection Legislation
Authors: Yan Leung Ho , Glofcheski Rick
Published: April 2022

The need for special legal protection for pregnant workers has long been recognized at international law, but in domestic law the nature and application of these protections varies across jurisdictions. This paper will examine Hong Kong’s labour legislation as it pertains to pregnant workers, with particular emphasis on job-security measures and the adequacy of leave entitlements. The authors argue that current statutory provisions are a scattered compliance with Hong Kong’s international obligations, and in any event inadequate in modern conditions. Convention ratification, more flexible maternity leave, increased job security protection, source re-allocation for maternity leave pay, extension of statutory protection to part-time workers, and better promotion of anti-discrimination laws are among the recommendations suggested by the authors.
Rethinking the Lawrie-Blum Doctrine of Subordination: A Critical Analysis Prompted by Recent Developments in Italian Employment Law
Authors: Nogler Luca
Published: April 2022

This paper takes as its starting point the European Court of Justice (ECJ) case law dealing with the concept of ‘worker’ for the purposes of Article 39 of the EC Treaty (free movement of persons). In particular, the leading case, Lawrie-Blum v. Land Baden-Württemberg, provides the classic definition of worker, based on the criterion of the ‘performance of services for and under the direction of another person’, in short ‘subordination’, a concept that appears to have no parallel in English labour and employment law. It is argued that a general, standard EU-law notion of employed persons or workers, based on the concept of subordination, is lacking. The paper examines the connections between para-subordinate workers in Italy and employee-like persons in Germany (Arbeitnehmerähnliche Personen), with comparable workers in the UK, para-subordinate workers in France, Portugal and Spain and dependent contractors in Sweden, in support of the view that everywhere in Europe there is a sort of middle category. In the UK it is a statutory category including both employees and certain self-employed workers, whereas in Germany, Italy and France the middle category consists of self-employed workers and replaces personal subordination with a test based on the economic dependence of the worker on the enterprise. To conclude, the author puts forward the view that Lawrie-Blum is an insufficient basis for the notions used in EU-law dealing with self-employed persons, contracts of employment and salaried workers.
Judicial Control of Unfair Terms in Employment Contracts in Scotland and Germany: A Comparative Analysis
Authors: Seeger Silke
Published: April 2022

Employment law practioners in Scotland and Germany have seen several recent cases of varying authority dealing with the unfairness of standard terms in employment contracts. The objective of this paper is to assess and compare two potential legal responses to the unfairness of terms: the implication of terms and the relevant statutory regimes on Unfair Contract Terms in both jurisdictions. A particular focus will be on clauses regarding the employee’s place of work and renumeration. As a result of the comparative study, the author will come to the conclusion that German courts are more inclined to interfere with contractual terms than their Scottish counterparts, the latter putting a stronger emphasis on the doctrine of freedom of contract.
The Role of Women’s Groups in New Zealand, UK and Canadian Trade Unions in Addressing Intersectional Interests
Authors: Douglas Julie , Parker Jane
Published: April 2022

Trade union women’s groups (WGs) may be defined as collective mechanisms such as women’s committees, conferences, networks, caucuses, branches/locals and training courses located within the wider union setting (cf. independent, self-organized WGs). The study draws on national surveys of trade unions in the UK, Canada, and New Zealand to examine the role(s) played by WGs, particularly in terms of voicing and advancing diverse or intersectional interests. Diversity builds on the more or less stable identities on which ‘difference’ ideas of (gender) equality are premised. Intersectionality is defined here as recognition of a person or group’s membership in more than one marginalized group, and intersectional interests as (i) interests held by subgroups of women (e.g., ethnic minority women); (ii) interests which transcend gender but may have gendered impacts; and (iii) more traditionally conceived gender interests which emphasize women’s situation relative to that of men (i.e., ‘intra-’, ‘trans-’ and ‘inter-gender’ interests). We also examine the equality approaches that underpin these pursuits before considering how intra-WG, union, and wider contexts help account for similarities and differences in union WG foci in the three countries. Based on extant research and the study’s empirical findings, the concluding discussion considers the broad directions in which UK, Canadian and New Zealand WGs may be headed in terms of representing intersectional interests and what this may mean for internal cohesion and union revitalization.
Impact of Labour Law on South Africa’s New Corporate Rescue Mechanism
Authors: Burdette David , van Eck Stefan , Joubert Tronel
Published: April 2022

South Africa's recently enacted Companies Act introduces a new corporate rescue mechanism known as 'business rescue'. One of the aims of corporate rescue is the resuscitation or reorganization of companies in financial distress. The legal disciplines of labour, insolvency, and corporate law interact during business rescue proceedings. In this contribution, the question is posed whether an appropriate balance has been struck between employees' and creditors' interests in this new corporate rescue mechanism. The investigation is conducted against the background of International Labour Organization (ILO) and European Union (EU) standards and South Africa's labour, insolvency, and corporate law frameworks. The conclusion is drawn that the potential success that this rescue mechanism has to offer could be weakened due to provisions that result in the over-protection of employees.
Flexicurity Institutions and Labour Market Mobility
Authors: Furåker Bengt , Berglund Tomas
Published: April 2022

Advocates of flexicurity claim that flexibility and security in the labour market can be achieved by a combination of certain institutions: liberal Employment Protection Legislation (EPL), generous income protection, extensive Active Labour Market Policies (ALMPs), and good opportunities for Lifelong Learning (LLL). Such a mix of measures is assumed to lead to an efficiently functioning labour market, implying a win-win situation for both employers and employees. This article examines the relationship between flexicurity institutions and some forms of labour market mobility between employment and unemployment and between employment and inactivity in four Nordic countries, Denmark, Finland, Norway, and Sweden, in the period 2000-2006. With the most liberal EPL and generous measures for people without jobs, Denmark is closest to the flexicurity ideal. Controlling for various other factors, it turns out that the Danish labour market generally - but not in every respect - has the highest levels of mobility. Perhaps the most interesting exception is that the highly significant transition rate from unemployment to employment is higher in Norway. The explanatory value of flexicurity is, thus, limited and the assumptions regarding the effects of mutually reinforcing flexicurity institutions are called into question.
Does One Size Fit All? Trade Unions, Discrimination and Legal Regulation in the European Union
Authors: McKay Sonia
Published: April 2022

It is argued that accessing decent work and employment is among the most effective ways of integrating people and encouraging social cohesion, and it was within this framework of understanding that, just over ten years ago, two Directives were passed: Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in accessing employment and while in work and Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.1 The Equality Directives do more than simply locate equality issues within the workplace. They also place a particular responsibility on Member States to promote social dialogue between the social partners, employers, and trade unions to work towards the promotion of equality. This article considers the extent to which the directives have been successful in this regard through an examination of initiatives taken by Europe's trade unions to foster equal treatment. Based on a study of 130 such trade union initiatives in thirty-four European countries, selected on the basis of their significance or degree of innovation in relation to their specific country contexts, the article examines whether and in what way the principles enshrined in the directives have impact on the practices of Europe's trade unions while also considering whether their histories, geographies, policies, and practices together with their contexts of operation make the promotion of equality in all of the areas covered by the directives a challenge too far. This also at least raises the question as to whether a single framework for legal regulation can operate as an effective tool for the promotion of equality, in particular, given the responsibility of trade unions to their members, who, in periods of economic crisis, may focus on job protection measures to the exclusion of other policies.
Decent Work and Domestic Workers in South Africa
Authors: Mpedi Letlhokwa George
Published: April 2022

The majority of domestic workers in South Africa are (black African) women. As long as women do not have the freedom to make their labour market choices, it cannot be said that they are empowered. Ideally, a move away from vulnerable employment into wage and salaried work would contribute towards the empowerment of women. However, the move from the agricultural sector to the services sector in private households hides the limited nature of women's empowerment. This article examines to what degree domestic workers in South Africa are afforded decent work institutionally. To this end, it considers four main challenges. First, the employment deficit: this means that people cannot find work or business opportunities in the formal economy. Second, the representational deficit: due to being unorganized, informal economy workers are excluded from (or under-represented in) social dialogue institutions and processes. Third, the rights deficit: workers' rights relating to freedom of association, collective bargaining, absence of forced labour, and discrimination are insufficient or non-existent. Fourth, the social protection deficit: clearly even though the workers in the domestic sector and informal economy are most in need of social protection, they are unable to access formal social protection schemes due to membership and contribution issues. It has been argued that when attempting to give meaning to the Decent Work Agenda, one may have regard to four strategic objectives, namely, promoting and realizing standards and fundamental principles and rights at work, creating opportunities for women (and men) to secure decent employment and income, enhancing the coverage and effectiveness of social protection for all, and strengthening tripartism and social dialogue. This paper analyses and critically evaluates how these strategic objectives have been pursued with respect to domestic workers and to what extent they have been achieved.
Labour Obligations in the US-Chile Free Agreement: The Illusion of Soft Law
Authors: Gamonal Sergio
Published: April 2022

This article focuses on the effects on labour of the United States-Chile Free Trade Agreement (FTA). The author makes a brief introductory reference to the origins of international labour law and the new developments in worker protection in times of globalization, highlighting the social clause, among other mechanisms. The social clause in Chapter 18 of the United States-Chile FTA is examined, basically identifying four types of standards: Labour commitments, labour obligations, cooperation, and procedures. Since labour commitments constitute soft law guidelines, their practical efficacy is equivalent to that of a policy statement. On the other hand, a breach of Labour Obligations can result in financial penalties for the offender. However, these Labour Obligations are limited to monitoring the enforcement of each Member State's existing labour laws. The social clause is, therefore, fairly sterile, and the author concludes that the worker protection mechanisms in this type of FTA are in need of reformulation.
Teaching Labour Law in a Common Law Jurisdiction
Authors: Riley Joellen
Published: April 2022

Frequent changes in domestic labour legislation and policy and the pressures of globalization have created particular challenges for the teaching of the discipline of labour law. These challenges also present opportunities for refreshment of the labour law curriculum to inject a deeper appreciation of the fundamental principles underpinning the regulation of work and to introduce topics of relevance to the twenty-first century student. This paper reflects on those challenges and opportunities from an antipodean perspective.
The Evolution of Doctoral Research Programmes: The Italian Case of the Doctorate in Labour Relations
Authors: Golzio Luigi
Published: April 2022

This paper provides an overview of recent trends in doctoral research programmes, with a particular focus on the Ph.D. programme in labour relations at the Marco Biagi Foundation at the University of Modena and Reggio Emilia. In the Italian context, in spite of a steady increase in the number of Universities, faculties and students, state funding has been subject to downward pressure in recent years, giving rise to the need to seek alternative sources of funding. Another significant environmental pressure examined in the paper is the emerging demand for applied research, resulting in a change in emphasis from philosophical programmes, with a focus on fundamental research, to professional programmes that provide greater scope for applied research, known in Italy as Executive Ph.D.s. Funding for such programmes may be allocated by private sector companies and public bodies, and at times the professionals taking part provide their own funding. In conclusion, the paper examines the methodological problem that the doctoral research school at the Marco Biagi Foundation has started to address in its own programme, making the transition to a multidisciplinary and interdisciplinary approach to the study of labour relations.
Multinationals and National Industrial Relations in Times of Crisis: The Case of FIAT
Authors: Senatori Iacopo
Published: April 2022

This article analyses recent developments in the Italian industrial relations system resulting from the joint pressures exerted by the EU institutions and an Italian multinational, both advocating deregulation of the legal framework, with a move towards company-level regulation, and opt-out clauses in national collective agreements. It is argued that such pressures appear to be effective in shifting the balance of power between the players, overcoming resistance to a deregulatory and decentralizing approach. However, the demands of just one company, albeit a leading employer, cannot shape the legal system as a whole, but rather give rise to a multi-faceted model.
International Labour and Social Security Standards: A Developing Country Critique
Authors: Olivier Marius
Published: April 2022

Emphasizing the need for international standards to appreciate the realities of developing countries, the contribution highlights some of the problems experienced in this context: weak ratification of international labour and social security instruments, the lack of appropriate standards and coverage as regards informal economy workers, inadequacies in the material sphere of coverage emanating from these standards, and deficiencies in respect of standard-setting and -enforcement. It suggests that there is need for a reorientation and reconceptualization of international labour and social security standards, supported by a change in approach to assist developing countries in achieving outcomes that are aligned with international standards, and involving those affected by the extension debate in the design of appropriate standards and interventions.
The Failure of the Minimum Age Convention to Eradicate Child Labour in Developing Countries, with Particular Reference to the Southern African Development Community
Authors: Calitz Karin
Published: April 2022

The Minimum Age Convention 138 of 1975 sets a general minimum employment age of 15 years. All work by children under this age is regarded as detrimental. Although developing countries may temporarily implement a lower age of 14 years (and 12 years for light work), many of these countries have adopted 15 years as the minimum age with no provision made for children to do light work, due to the complexity of the measures in Convention 138. In this article, the view is taken that the ILO's approach is not appropriate for developing countries. In terms of the culture of some of these countries, non-detrimental work by children is regarded as beneficial. Furthermore, children in these countries often have no choice but to work. However, the effect of the Minimum Age Convention is that child work below a certain age is not regulated and is even criminalized, with the effect that children are pushed into the worst forms of child labour. Although the worst forms of child labour should be eradicated with immediate effect, non-harmful work by children over the age of 12 years should be regulated rather than abolished. In spite of the fact that all countries in SADC have ratified the Minimum Age Convention, millions of children still work in the area, many of them involved in the worst forms of child labour. It is suggested that in order to protect children in SADC who have to work, a minimum age of 12 years for light work and a multilateral definition of light work should be adopted.
A Potential Roadmap towards Workplace Fairness in China: With Some Lessons from the US Experience
Authors: Zack Arnold M. , Kochan Thomas A.
Published: April 2022

The article outlines key principles for workplace dispute resolution that are consistent with continued economic advance of China's labour market and employment relations. An account is given of recent experience in the US with mediation, arbitration and advanced forms of negotiations. The article then discusses the opportunity offered by pressures on labour standards from external corporate responsibility codes. It suggests venues for experimenting with these processes in Chinese employment. It concludes by emphasizing the need to develop the skills and capabilities needed by managers, worker representatives and third-party neutrals to implement and support these dispute resolution processes.
The Ending of Unauthorized Strikes in the West: Some Policy Implications for China
Authors: Brown William J.T.
Published: April 2022

Unauthorized strikes were a common feature of the private sectors of many Western economies in the third quarter of the twentieth century. They largely disappeared during the fourth quarter. At a time when such strikes are an increasing issue in China, the article considers why they ceased to be such in the West, using evidence from Britain. It discusses the nature of unauthorized or 'wildcat' strikes and argues that several factors caused them to fade away. Pressures of increased product market competition forced management to gain closer control over the conduct of work and payment systems. Trade unions restructured themselves to cope better with workplace bargaining, before declining in influence. Government increased the procedural constraints on workplace strikes and created an independent third-party intervention service. The article concludes with policy implications.
The Principle of Effet Utile and Its Impact on National Methods for Enforcing the Rights of Posted Workers
Authors: Kullmann Miriam
Published: April 2022

Although Member States are largely free to decide how to monitor and enforce the rights of posted workers, they are nonetheless bound to comply with EU law. In doing so, Member States must adhere not only to the principle of effet utile, setting minimum requirements, but also to the limits imposed by the freedom to provide services, placing a ceiling on national methods. Member States adopt different enforcement methods, though generally the following three are to be found: the state-oriented, the judicial and the industrial relations enforcement methods. Starting from this distinction, the article analyses the relation between EU law and national law, examining cases in which national methods for enforcing the rights of posted workers have come under the scrutiny of the Court of Justice of the European Union. An attempt is then made to identify the Member States' room for manoeuvre.
Mandatory Retirement in the EU and the US: The Scope of Protection against Age Discrimination in Employment
Authors: Wiesbrock Anja
Published: April 2022

This paper discusses the divergent approaches towards age discrimination in employment and mandatory retirement in the EU and the US. It challenges the perception that older workers seeking to work beyond the retirement age enjoy a significantly higher degree of protection from discrimination in the US. Even though US law strictly outlaws mandatory retirement, it does not adequately protect older employees form employer practices that are indirectly discriminatory and that may have the same effect as mandatory retirement provisions. When aiming for substantive equality, which not only prohibits mandatory retirement by law, but also prevents the practical effect of older employees being forced to retire against their will, it appears that US employees are in a similarly vulnerable position to their European counterparts.
The Human Right to Non-discrimination as a Legitimate Part of Workplace Law: Towards Substantive Equality at Work in Australia?
Authors: Gaze Beth
Published: April 2022

Acceptance of anti-discrimination law as an integral part of labour law requires acknowledgement that some longstanding employment practices may affect groups of workers differently in unfair ways. This can be disruptive to existing entitlements: anti-discrimination law can challenge the fairness of law that has been developed to suit the paradigm worker, while the individualist human rights approach challenges the collectivist assumptions on which much labour law rests. In Australia anti-discrimination law has developed from a human rights basis and has generally been treated as outside labour law. Recent legislative changes providing protection for workers against 'adverse action' by employers raise the possibility that this may be an avenue for integrating the non-discrimination principle into labour law. However, early judicial interpretations suggest that resistance to adjusting labour law may continue.
Remedies for Unlawful Collective Action in France, Belgium, Italy and Spain
Authors: Faro Antonio Lo , Laulom Sylvaine
Published: April 2022

This article provides a comparative analysis of France, Belgium, Italy, and Spain demonstrating that in each of these countries the notion of unlawful strikes is fairly restricted. Whether considered from the point of view of the definition, the action taken, or its objectives, the probability of a strike being declared unlawful is not high, either due to the absence of detailed legislative rules, as in the case of France, Belgium, and Italy, or because of a fairly permissive constitutional interpretation of the existing rules, as in the case of Spain. As a result, if we turn our attention to the 'remedial' aspect of the four national systems under examination, we find a widespread perception according to which unlawful strikes do not play a key role in the overall scenario of collective action. More specifically, even though the principle that any tort must have its remedy is certainly not disputed in the countries concerned, it remains evident that, unlike what has happened in the Swedish follow-up to Laval, civil liability for damages does not play a key role in the current debate.
Strike and Remedies for Unlawful Strikes in the Legal Systems of Poland, Hungary, and Slovakia
Authors: Unterschütz Joanna
Published: April 2022

Poland, Hungary, and Slovakia, like many other Central and Eastern European states, underwent profound economic and legal reform in 1989 and early 1990s with the harmonization of their legal system with the EU acquis along with democratic reform of the political system. In this period international conventions, especially ILO standards, were the main source of inspiration. In all three countries strikes are regarded as a last resort, and certain procedures must be implemented to call a lawful strike. The first formal requirement in Polish and Slovak law concerns the reason for a collective dispute: work and employment conditions as well as trade union freedoms and rights or conclusion of a collective agreement. The next requirement concerns the parties to the dispute: workers must be represented by trade unions (except in Hungary). They cannot initiate a collective dispute individually (even if the outcome would subsequently concern all the employees) or through another representative body such as works councils or employee representatives. The proportionality principle must be respected with regard to the demands of strikers and those organizing the strike may be liable for damages. Workers taking part in unlawful strikes may be subject to the sanctions laid down in labour law, such as disciplinary sanctions, dismissal or pecuniary sanctions if damage is caused. Provision for criminal liability is made only in the Polish legal system. They are construed so that many acts of employers or trade unionists representing workers in the course of collective disputes can be subject to sanctions. As far as illegal strikes are concerned, those leading an illegal strike or other protest action can be criminally liable.
Danbury Hatters in Sweden: A U.S. Perspective on the Available Remedies and Sanctions for Employers Who Suffer Unfair Labor Practices by Labor Unions
Authors: Nikitas Margot A. , Marzán César F. Rosado
Published: April 2022

This article describes the remedies available to employers who suffer unfair labor practices by labor unions, and contributes to European Union (EU) discussions on how the EU should sanction labor organizations that infringe on fundamental freedoms. These EU discussions have flourished ever since the Court of Justice of the European Union decided the Laval quartet of cases which held that worker concerted activities that impacted freedom of services and establishment in the EU violated EU law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages, on labor unions for violating EU law. The U.S. experience warns against the imposition of punitive damages. Punitive damages may not only be unfair for workers, but may cause unions to become too risk-averse when representing workers. Moreover, workers' concerted activities should be understood as activities commensurate with market freedoms. If such market freedoms are exercised in unfair ways, the unions should be subject to compensatory but not punitive damages.
Labour Law and Triangular Employment Growth: A Theory of Regulatory Differentials
Authors: Bartkiw Timothy J.
Published: April 2022

This article examines growth in triangular employment and related staffing services. A review of competing understandings of triangular employment growth through the lens of three alternative theoretical paradigms (neoclassical, institutionalist, and critical) illuminates the space for the notion of triangular employment growth as problematic and reinforces the theoretical importance of the relationship between triangular employment growth and labour law. To this end, the concept of a 'regulatory differential' - a differential effect of regulation that occurs as between triangular and direct employment forms - is developed; a taxonomy of various forms, these take in any given jurisdiction is provided; and the relationship between underlying regulatory differentials and employer status rules is discussed.
Social Regionalism in Better Work Haiti
Authors: Blackett Adelle
Published: April 2022

This article affirms that emerging frameworks on social regionalism provide a normative basis through which to assess whether experimentalist transnational regulatory frameworks on trade-labour governance enhance counter-hegemonic approaches to development. First, this article briefly presents a theorization of social regionalism. Second, it turns to the specifics of the Better Factories Cambodia and Better Work preferential trading arrangements, with attention to the context and biannual reports emerging from Better Work Haiti. Its core contention is that the initiative constitutes a tentative, limited but promising example of an emergent social regionalism. It considers that a dialogic space at the international level may offer an important means through which to overcome seemingly intractable, sector-specific, transnational collective action challenges at the interface of trade and labour law.
Regulation of Fixed-Term Employment Contracts in the EU, France, Finland and the United Kingdom: A Comparative Analysis
Authors: Sädevirta Markus
Published: April 2022

This article considers the regulation of fixed-term contracts in the Framework Agreement on Fixed-Term Work, in the light of its key objectives. It considers whether the Framework Agreement has managed to retain open-ended contracts as the main form of employment, to prevent the abuse of successive fixed-term contracts, and to sanction such abuse. The article provides a comparative analysis of the regulations implementing the Framework Agreement and their objectives, and an assessment of whether these regulations meet the said objectives, in three European Union (EU) Member States: Finland, France and the United Kingdom (UK). The relevant CJEU case law indicates that the key principles governing the use of fixed-term contracts, such as the key role of open-ended contracts and the principle of objective reasons, are still too imprecise. This, coupled with the fact that the conditions for using successive fixed-term contracts are not precisely determined in Clause 5 and that the Clause does not have vertical direct effect, leads to the conclusion that the Framework Agreement has partly failed in its objective of preventing abuse arising from successive fixed-term contracts and retaining open-ended contracts as the main form of employment, as recent CJEU case law indicates. The effects of the Framework Agreement in respect of Clause 5 have remained relatively modest in the three countries reviewed. Legislation restricting the use of successive fixed-term contracts was already in place in France and Finland, and thus no implementation measures were needed.The UK was one of the few countries that had to introduce completely new measures to implement the Directive. Even in this case, the Agreement has not resulted in any significant improvement in the protection of fixed-term employees.
Labour Standards and Sustainable Development: Unpicking the EUs Approach
Authors: Mangan David , Zahn Rebecca
Published: April 2022

This special edition contains a selection of papers presented at the conference Labour Standards and Sustainable Development: Unpicking the EU’s Approach. 1 As the organizers of the conference and guest editors of this special issue, we are grateful to many, including: for their generous financial support, the Society of Legal Scholars, UACES, the University of Bristol, School of Law and the University of Stirling, School of Law; the speakers and attendees at the conference in October 2014; and Professor Mia Rönnmar, editor of the Journal, for the opportunity to publish the following papers. Below we briefly set out our motivation for holding this conference as well as the principles which guided its organization. Finally we summarize the articles contained in this special issue and conclude with our thoughts on possible directions for future research.
Protecting Fundamental (Social) Rights through the Lens of the EU Single Market: The Quest for a More Holistic Approach
Authors: de Vries Sybe
Published: April 2022

In this article, four trajectories will be followed with a view to further developing the linkages that exist between the EU Single Market and fundamental (social) rights and to examining to what extent the EU Single Market, apart from putting constraints on the realization of social rights, offers the chances to enhance and even strengthen the social face of the EU. The question is whether the current approach to EU free movement law by the EU Institutions and most notably the Court of Justice of the European Union (CJEU) could benefit the protection of fundamental social rights. The article also examines the potential impact of the EU Charter and the changes brought about by the Lisbon Treaty, strengthening the social face of the EU.
Labour, Love and Futility: Philosophical Perspectives on Labour Law
Authors: Bogg Alan
Published: April 2022

This article considers the value of a philosophical perspective in reflecting upon some central problems in labour law. Philosophy can sharpen our understanding of values, linguistic practices and social phenomena. This is as true in labour law as in any other domain of social life. Philosophical argument can advance our understanding of the ways in which labour law is coherent as a field of regulatory activity, given the special normative importance of employment as a mode of organizing work. It also identifies the special role of corrective justice in rights-based theories of labour law, repositioning corrective justice as a central concern in the theory of labour law. Finally, the article argues against forms of methodological closure that elevate the empirical over the philosophical. The intellectual strength of a legal discipline depends upon its openness to a wide range of different methodological approaches, including philosophical argument and reflection.
Challenging the EU Downward Pressure on National Wage Policy
Authors: Menegatti Emanuele
Published: April 2022

In-work poverty is increasingly becoming a problem of major concern for many EU Member States. In the opinion of many, a common European wage standard could constitute a desirable and effective solution. However, Article 153(5) TFEU excludes the EU from competence on pay, preventing the EU institutions from taking any binding action to that end, while attempts to address the issue by soft law or coordinated wage bargaining have proven to be ineffective. Even so, the exclusion of the EU institutions from exercising competence in the area of pay has not prevented them from acting within the existing framework of European economic governance to issue recommendations aimed at cutting or freezing national minimum wages and public-sector wages or keeping their growth in check (wage moderation). The article considers whether there is room to challenge the EU encroachment on national wage policies as a way to restore to national governments and the social partners the freedom to address the question of wages according to their own best judgment.
Labour Market Reforms and Beyond: The Italian Case
Authors: Del Punta Riccardo
Published: April 2022

The author examines the process of the labour market reform in Italy. The main provisions of the subsequent waves of reform are highlighted, with special emphasis on the reform of dismissal regulations, the role of the standard employment contract in response to labour market dualism, the measures aimed at enhancing functional flexibility and productivity, the growing importance of decentralized collective bargaining and the persistent shortcomings of security measures. The intrinsic limits of these reforms, deriving from their mainly neoliberal inspiration, are then examined. At the same time, it is argued that they have offered a chance for modernization of the labour law approach, which needs to be further developed in a constructive perspective going beyond a mere reaction to neoliberal challenges.
Applying the Temporary Agency Work Directive to Platform Workers: Mission Impossible?
Authors: Rosin Annika
Published: April 2022

In recent years most of the discussion among labour law scholars about platform workers has concentrated on their employment status. However, it is unclear which norms regulate platform work in cases in which the worker is classified as an ‘employee’. Platform work resembles temporary agency work (TAW) due to its fixed-term and triangular nature, giving rise to the question of whether provisions regulating TAW should be applied to platform work. The aim of this article is to analyse whether it is possible to apply the Temporary Agency Work Directive (TAWD) to platform workers and whether it would improve their employment conditions. It is argued that the automatic application of the TAWD to platform workers would be complicated and would not improve their employment rights. The main obstacles include the problems arising from the assignment of supervision and direction to the user; issues relating to the determination of working time; the identification of a comparator for the purposes of equal treatment, and the derogation from the principle of equal treatment based on qualifying periods. Other possibilities for the regulation of platform work need to be identified.

Platform Work, Temporary Agency Work, Temporary Agency Work Directive, Atypical Employment
Occupational Welfare in Israel: A Study of Collective Agreements and Benefits
Authors: Lurie Lilach
Published: April 2022

Welfare regimes differ in how they supply social benefits such as pensions, disability allowances, and unemployment funding. In several regimes, the social partners – employee unions and employers’ associations – provide social benefits for workers. These regimes promote occupational welfare. This article aims to study the advantages and limitations of occupational welfare through the case study of Israel – a country in which the social partners promote occupational welfare by means of collective agreements. It examines the ways collective agreements – directly and indirectly – advance occupational welfare in Israel. The research includes a quantitative study of all collective agreements concluded in Israel in the period 1957-2016 and a qualitative study of Israeli collective agreements at the national level. The study shows that although Israel’s social partners lost much of their power during this period, they are still able to promote occupational welfare, and that Israeli social partners promote innovative workplace policies through collective agreements. Several occupational welfare arrangements first introduced in collective agreements were later extended through legislation or extension orders to all Israeli workers. Without collective bargaining, important occupational welfare benefits might have not been introduced. However, state legislation was needed to fix the flaws of these arrangements, including enforcement problems and lack of coverage of the self-employed.

Occupational Welfare, Social Welfare, Collective Agreements, Employee Unions, the Social Partners, Pension, Disability Benefits, Minimum Wage, Israel