bluuebunny/crossref_metadata_2025 huggingface dataset:
European Principles of Good Administration and UK Administrative Justice
Authors: Nason Sarah
Published: April 2022

Recent interest in the harmonizing potential of European administrative law stems in part from the view that administrative states are facing a ‘legitimacy crisis’ and that administrative law must evolve to survive. Emergent ‘new administrative law’ no longer recognizes the state as a centralized leviathan, but rather as promoter, facilitator, regulator, and helmsman of domestic social and economic progress.

In this article I argue that articulating shared ‘European’ principles of good administration and administrative law only goes part of the way to understanding this re-positioned administrative state, and that a better approach also focuses on the architecture of administrative justice. I outline various UK conceptions administrative justice and European conceptions of good administration and examine, for the first time, the impact that European principles of good administration have had on UK administrative justice.

I argue that UK approaches to administrative justice help to meet the challenges of new administrative law by focusing on incorporating principles of good administration and human rights into the design architecture of institutions, as well as into administrative law itself. I conclude that there is potential to develop, through further comparative analysis, European conceptions of administrative justice, overlapping with and complementary to, European principles of good administration.

Good administration, administrative justice, Council of Europe, European administrative law, right to good administration
Threats to the Rule of Law: The Pitfalls of the Cooperation and Verification Mechanism
Authors: Vassileva Radosveta
Published: April 2022

The Juncker Commission has recently indicated that the experienced gained from the Cooperation and Verification Mechanism (CVM) is relevant when addressing rule of law challenges in all Member States. It has also proposed to monitor the rule of law in all Member States. Bulgaria and Romania are the only EU members which are subjected to the CVM because they did not fully fulfill the accession criteria on the rule of law when they acceded to the Union in 2007. In 2018, the Juncker Commission identified important progress in Bulgaria and promised to lift the mechanism for the country before the end of its term. Yet, has the CVM helped Bulgaria strengthen its rule of law? By using Bulgaria’s CVM as a case study, this article showcases some of the pitfalls of this mechanism, including the quality of the Commission’s monitoring – namely, that Bulgaria’s rule of law declined despite the CVM. Dissecting this phenomenon is important not just in light of the Commission’s own call to study the experience gained from the CVM, but also in view of growing concerns about dual standards in enforcing EU values in the Union.

Rule of law, EU values, European Convention on Human Rights, Cooperation and Verification Mechanism (CVM), Romania, Bulgaria, Law reform, Judicial independence, Political judicial council, Political Prosecutor’s Office
Multi-Level Governance in Action: Access to Justice in National Courts in Light of the Aarhus Convention
Authors: Hadjiyianni Ioanna
Published: April 2022

This article explores the multi-level governance of access to justice in environmental matters by analysing how the Aarhus Convention gains added force in the national legal order through its interpretation by the Court of Justice of the EU. In combination, the Aarhus Convention and its incorporation in the EU require national legal orders to grant wide access to justice, particularly to environmental non-governmental organizations (ENGOs). This article explores the interplay of the different levels of governance and analyses their distinct contribution, with the Aarhus Convention setting the general legal requirements at the international level, EU law refining such requirements vertically in relation to Member State obligations, and national law potentially implementing wide access to justice on the ground. While in some Member States, such access is assumed and has led to the emergence of strategic litigation, in others standing requirements are still interpreted narrowly. Within this context, the article assesses the applicable legal framework in Cyprus, whose legal system provides interesting opportunities to realize the combination of the different levels of governance in light of the added force of supremacy of EU law over constitutional provisions that determine access to courts. The Cypriot case study exemplifies the potential of a combination of international, EU, and national requirements, to require a move away from an unduly restrictive interpretation of standing, which has been largely followed to date.

access to justice, environment, non-governmental organizations, Aarhus, Cyprus, multilevel governance, CJEU, standing, locus standi, courts, European Union
The ‘Weakening’ of the Duty to Give Reasons in Italy: An Isolated Case or a European Trend?
Authors: Delsignore Monica , Ramajoli Margherita
Published: April 2022

Despite the importance formally attached to the principle, the Italian legal system is witnessing a progressive ‘weakening’ of the duty to give reasons. This weakening process seems problematic from the perspective of the respect of the rule of law and effective judicial protection of individuals vis-à-vis the administrative action. This phenomenon though is not specific of the only Italian legal system. The analysis of European Law and of the provisions in selected Member States have shown the weakening of the duty to give reasons can be considered a widespread issue.

duty to give reasons, administrative measure, participation, administrative procedure
An Empirical Study of the Frequency and Distribution of Judicial Review in Resolving Public Procurement Disputes Within the UK: Proposals for Legal and Policy Reform
Authors: Cahill Dermot , Clear Stephen
Published: April 2022

Unlike other EU Member States, existing studies on public procurement challenges in UK local government lack empirical analysis. The Law Commission has identified this as an area for review. Little is known about the frequency and distribution of such challenges within the UK. Consequently, observations made on the number of procurement disputes actually leading to judicial review applications are speculative. This article, for the first time, generates new empirical data on the subject and makes reform recommendations. Using data elicited from nearly 400 local government bodies, the national and regional frequency and distribution of such challenges is illuminated for the first time. Glaring inability by Local Government bodies to retain and retrieve data pertaining to Local Government procurement was revealed by the study; the frequency and distribution of challenges was seen to vary widely across different UK regions; the number of challenges has risen significantly following 2009 law and policy reforms (rather than reduce); and the insights generated in the article will support the Law Commission’s call for further study of internal administrative review systems within public bodies so the connection between administrative justice and those seeking natural justice in procurement disputes is better understood.

judicial review, local government, public procurement, freedom of information, policy reform.
The Application of EU Fundamental Rights During the Financial Crisis: EU Citizenship to the Rescue?
Authors: Kalaitzaki Katerina
Published: April 2022

The procedure of challenging austerity measures for EU fundamental rights violations during the financial crisis has revealed a serious ‘review gap’ due to the – often atypical – nature of financial measures and the Charter’s limited application. This article examines a different way to address the ‘review gap’ by focusing on EU citizenship’s role to provide the ‘way into’ EU law, allowing Charter rights to be invoked in a broader scope of application that would encompass austerity measures challenges. Specifically, Article 20 Treaty on the Functioning of the European Union (TFEU) and the ‘substance of rights’ doctrine can provide that opening, when placed into a different jurisdictional test that also involves the ‘operationalisation’ of Article 2 Treaty on European Union (TEU). This ‘inverse applicability of EU law’ test will allow further rights to be judicially incorporated into the list already expressly articulated in Article 20 TFEU, creating a bridge between what are traditionally conceived as ‘purely internal situations’ and establishing the necessary ‘connecting factor’ to EU law.

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
Enlargement and Industrial Relations: Building a New Social Partnership
Authors: Weiss Manfred
Published: April 2022

Abstract: This paper argues that the accession of 10 new Member States in 2004 represents the greatest challenge the EU has ever faced, since the considerable enlargement in surface area and population, along with the increase in the number of countries and languages, is not matched by a commensurate rise in GDP. In the countries of Central and Eastern Europe the development of industrial relations has not managed to keep pace with the emergence of democratic freedoms and the market economy, with highly individualistic neo-liberal values tending to prevail. The weakness of the trade unions is matched by that of the employers’ associations, and collective bargaining is largely confined to company or plant level. In Central and Eastern Europe a legalistic approach is common, with a wide gap between legislative provisions and day-to-day practice, but EU Directives increasingly rely on the active participation of the social partners for their implementation, that varies widely from country to country. The impact of the single currency on working conditions and collective bargaining is discussed, some cases of cross-border collective bargaining are examined, and the fundamental role of employee participation in company decision-making is underlined. Without the involvement of social partners and/or workers’ representatives, the most recent Directives cannot be implemented in a satisfactory manner. The challenge is therefore for the EU as a whole to build an integrated system of industrial relations, and for the new Member States in particular to play an active part in this transformation.
Americanisation of the EU Social Model?
Authors: Vos Kees J.
Published: April 2022

Abstract: The European social model was developed mainly in comparison with US social and economic performance. The crucial distinction was that Europe had a much better track record in social affairs than the US. This paper examines whether or not the Lisbon objective of more competitiveness and growth will endanger the basic values of the European model. Taking into account recent trends in core dimensions, such as employment, social dialogue, social protection and cohesion, there appears to be an American-style evolution of the model.
The Transposition of the Race Directive (2000/43/EC) and the Framework Directive on Equal Treatment in Employment (2000/78/EC) into Dutch and Belgian Law
Authors: Burri Susanne D.
Published: April 2022

Abstract: This article provides a comparison of some aspects of the transposition of the Race and the Framework Directives in Belgium and the Netherlands. The context of the implementation processes differed substantially, in that the outlook of the existing Belgian and Dutch equal treatment legislation at the time of the adoption of the directives was profoundly different. The most striking differences related to the existence or the absence of comprehensive provisions relating to the grounds for the prohibition of discrimination, exemptions justifying unequal treatment and the competences of judicial or administrative supervisory bodies. The analysis of these divergences provides interesting insights into some of the problems relating to the transposition of EC equal treatment directives. The paper focuses on the extent to which these different contexts have resulted in the proper or improper implementation of the directives.
Discrimination and Security of Employment in a Post-Soviet Context
Authors: Kryvoi Yaraslau
Published: April 2022

Abstract: This paper analyses the problems of equal treatment and discrimination in Belarus in the legal, historical and political context. While the main labour laws in Belarus concerning equal treatment appear to comply with its international obligations, in the absence of an independent judiciary and basic civil liberties, law enforcement remains a problem. The author argues that the Soviet legacy of industrial relations and the legal nihilism of that era have been taken by Belarusian authorities as a model for their policies: most unions are not independent but are controlled by the government and there is widespread discrimination against opposition activists and independent trade-union leaders. A key part of this picture is the transfer of employees to fixed-term contracts, very often concluded for one-year periods: as a result, workers are deprived of the most important legal guarantees relating to the termination of employment and non-discrimination. In his concluding remarks, the author underlines the close relationship between security of employment and discrimination in the workplace in Belarus.
The Implications of the Lisbon Strategy for the Future of Social Europe: ‘On the Road’ or ‘New Age’?
Authors: Goetschy Janine
Published: April 2022

This paper aims to capture the implications of the Lisbon Strategy (LS), and in particular the Open Method of Coordination (OMC), for the future of Social Europe (SE) at EU level in a diachronic perspective. To do so, three intellectual exercises will be carried out. In the first part I outline the contours of the LS, its aims, achievements, assessments and the reforms it has undergone. The second part presents what I consider to be the structuring meta-features and main characteristics of Social Europe at EU level over 50 years of functioning: 12 key features will be provided for a meta-level analysis. In the third part, I examine to what extent the LS in its social and employment dimensions and the various OMC processes are in line with these 12 key features: the idea is to point out which of these ‘traditional’ features are taken up and carried forward by the LS (a continuity scheme), and which are the features for which the LS differs from the previous approach, opening new routes for Social Europe (a discontinuity scheme).
Flexicurity – Towards a Set of Common Principles?
Authors: Madsen Per Kongshøj
Published: April 2022

The interplay between labour markets and welfare states is at the core of debates about the new Europe, which will be shaped as the result of the Lisbon process. Recently the concept of ‘flexicurity’ has moved to the centre of the discussion. Can interfaces between welfare states and labour markets be developed, where flexibility and security come together having ‘flexicurity’ as the outcome? How can flexicurity develop within different national employment systems? Can the design and implementation of flexicurity arrangements be guided by a set of common principles on flexicurity?
Voluntarism and the Single Channel: the Development of Single-Channel Worker Representation in the UK
Authors: Dukes Ruth
Published: April 2022

Abstract: As a contribution to the debate on the possibility of an end to single-channel worker representation in the UK, this paper seeks to explain the persistence of single-channel representation in Britain throughout the twentieth century. It explores the meaning of the term ‘single channel’ generally, and in the British context, and examines the possibility of a causal relationship between the voluntarist approach to the regulation of industrial relations and the persistence of single-channel representation. The focus of the paper is on the Second World War and its aftermath, and the decision of the post-war government not to legislate to institute workplace representation across the board.
Global Employee Information and Consultation Procedures in Worldwide Enterprises
Authors: Seifert Achim
Published: April 2022

This paper advocates a trans–nationalisation of employee information and consultation procedures in enterprises operating on a worldwide level. After outlining the specific need for trans–national employee information and consultation, the paper provides an overview of the relevant provisions of international law (i.e. the OECD Guidelines on Multinational Enterprises Social Policy and the ILO provisions), but also of the existing trans–national private regulation (e.g. International Framework Agreements with trans–national enterprises) and how they cope with this regulatory need. The main argument is that international law should explicitly recognize the setting up of trans–national employee information and consultation procedures in worldwide enterprises to strengthen the efforts recently undertaken by global union federations in various International Framework Agreements.
The Council of Europe and Employee Involvement in Private Enterprises
Authors: Maack Nils , Birk Rolf
Published: April 2022

This paper addresses the existing provisions in the European Social Charter (ESC) relating to employee involvement in private enterprises, namely the right to information and consultation and the right to workers’ participation. After providing an overview of the Charter’s historical development, its relationship with the European Union law and the infl uence on the domestic law of the Member States of the Council of Europe are discussed. There then follows a brief description of the enforcement mechanisms for social rights under the ESC: the reporting system and the collective complaint. The subsequent part illustrates the development of the right to information and consultation in the different versions of the Charter, also considering collective redundancy procedures. This paper concludes by examining the rights to workers? participation included in the Social Charter.
Violation of Labour Rights in the Ship-Breaking Yards of Bangladesh: Legal Norms and Reality
Authors: Karim Md. Saiful
Published: April 2022

Ship-breaking started as an industry in Bangladesh in the early 1970s. This industry is not technically organized, and the management is also primitive and unsound. Although specific information is not available, it is estimated that about 700 workers have been killed and, at the same time, a total of 10,000 workers have been injured in explosions at the ship-breaking yards over the last three decades. This process continues unabated in the absence of specific legislation for regulating ship-breaking industries in Bangladesh. Against this backdrop, this paper identifies the major issues relating to enforcement of labour rights in the ship-breaking yards of Bangladesh.
The ‘Open Door’ Policy at IBM France: An Old-Established Voice Procedure that Is Still in Use
Authors: Rojot Jacques , Le Flanchec Alice
Published: April 2022

This paper deals with Alternative Dispute Resolution in labour relations within a company in the French context. By contrast with the United States and Canada, mediation and arbitration are rarely used in France for resolving individual or collective labour relations disputes. It is therefore interesting to study such voice procedures in labour relations in France and analyse their impact on procedural justice and equity within the company. The study also analyses the incentives to use mediation/arbitration, in labour relations, as well as the disincentives. It highlights the importance of information and communication with the employees in fostering positive attitudes to it and reducing their fears. This is illustrated by an empirical study of the French subsidiary of the IBM Corporation. We focus our attention on the IBM ‘open door’ policy and describe the results of a quantitative statistical analysis of 203 respondents.
Estonian Labour Law Reform: The Successful Implementation of the Idea of Flexicurity?
Authors: Muda Merle
Published: April 2022

Over the past ten years, the EU has been seeking ways to increase the adaptability of employees and enterprises and the flexibility of labour markets. Since 2006, the keyword has been flexicurity, and the implementation of this concept is intended to achieve the desired changes in labour relations. Accordingly, Estonia has attempted to reform labour relations in the light of the idea of flexicurity and adopted the Employment Contracts Act in 2008. This law comprises several amendments, the aim of which is to make labour relations more secure and flexible. This article focuses on the reforms that have had the greatest impact on the functioning of labour relations: the form of employment contracts; entering into and termination of fixed-term employment contracts; the employer’s obligation to provide training; the employer’s right to reduce wages; and the termination of the employment contact at the initiative of the employer. The author analyses whether the implementation of the idea of flexicurity has been successful with regard to these issues.
Informality, Employment Contracts, and Social Insurance Coverage: Rights-Based Perspectives in a Developing World Context
Authors: Olivier Marius
Published: April 2022

This contribution critically reflects on rights-based perspectives in relation to the extension of social security, in particular social insurance coverage to those who work informally, with a focus on the developing world. It is argued that the traditional social security concept is insufficient in this regard, mainly as a result of its particular focus on formal employment-based social insurance, its emphasis on state-regulated and formal forms of social security, and a narrowly focused risk/benefit approach, which does not reflect the true needs and situation of those who work informally. Domestic (social security) legal systems, as is the case with international standards embedded in most of the International Labour Organization (ILO) instruments, have a primary focus on those in the formal economy, who work within the framework of an identifiable employment relationship. In addition, there appears to be little scope to apply employment contracts outside the framework of the traditional employment relationship to support coverage extension of social insurance arrangements. Alternative approaches to and opportunities for coverage extension are suggested. These include: adopting innovative conceptual approaches to extend coverage beyond those who work in terms of a contract of employment; using contractual tracking approaches and deeming measures; and deliberately widening the base of social insurance coverage through targeted accommodation of informal workers. Finally, it is argued that there is need for a strengthened rights-based framework, supported and informed by suitable international standards, regional norms, and constitutional prescriptions, to ensure that social security, in particular social insurance coverage, is extended to informal workers.
Russian Employment Protection: Analysis from the Perspective of EU Flexicurity Policy
Authors: Lyutov Nikita
Published: April 2022

Although the term 'flexicurity' is not used in the Russian context, the question arises as to whether all or some elements of this EU policy are applied in Russia. This article argues that widespread claims about the excessive 'rigidity' of Russian employment protection legislation are seriously exaggerated, and that existing legal mechanisms give employers sufficient flexibility to manage labour relations. At the same time, the 'security' element of flexicurity, in the sense of active labour market policies, lifelong learning and effective social dialogue, is not implemented in an effective way in Russia. However, the major employers' association of Russia promotes only deregulatory changes to labour legislation in the face of limited opposition by weak trade unions. It is argued that this situation is dangerous for Russian social development, especially in the current economic situation.
Legitimacy and the Legal Regulation of Strikes in China: A Case Study of the Nanhai Honda Strike
Authors: Kai Chang
Published: April 2022

The article analyses approaches to legitimacy and the legal regulation of strikes in China in the context of rising levels of collective disputes and collective action. The right to strike, as a fundamental human right, has been recognized in principle and embodied in Chinese law. But the relevant legislation is not yet clear or sufficient. Strikes are not illegal in China, and the penalties to which those who organize strikes are liable arise from inappropriate application of the law, or are not based in law. Drawing on the experience of the 2010 Nanhai Honda strike, it is argued that dealing with strikes in the current legal framework should follow the principles of rational treatment and legal resolution.
Myth and Reality of the Right to Strike as a Fundamental Labour Right
Authors: Ewing Keith D.
Published: April 2022

This article addresses the right to strike in the context of recent developments in China. The matter is discussed through the medium of developments at the International Labour Organization (ILO) in 2012 where the existence of the right to strike was questioned by the International Organisation of Employers (IOE) in highly confrontational and controversial circumstances, in the process presenting a major political challenge to the ILO supervisory bodies and their very survival. It is argued here that the IOE claims are greatly exaggerated, that the position of the ILO supervisory bodies is easily defended, and that the behaviour of the IOE presents a serious threat to the rule of law. The article concludes with some brief reflections on the implications of the foregoing for the right to strike in China.
One Step Forward or More Window-Dressing? A Legal Analysis of Recent CSR Initiatives in the Garment Industry in Bangladesh
Authors: Keune Maarten , Haar Beryl ter
Published: April 2022

The Bangladesh ready-made garment industry has recently been the scene of a number of major accidents, with the collapse of the Rana Plaza on 24 April 2013 as the deadliest garment-factory accident ever known. Under renewed international pressure for multinational corporations (MNCs) to take responsibility for working conditions in these factories, two initiatives have been adopted with the involvement of leading European and North-American brands. With these initiatives, the MNCs claim to improve their corporate social responsibility (CSR) vis-à-vis those factories. From a regulatory perspective, they represent cases of transnational private regulation (TPR). Although CSR and TPR are increasingly common, these initiatives have been received with mixed enthusiasm, as they exist in a legal vacuum raising questions about their legal status, legitimacy, implementation and compliance mechanisms. These questions will be addressed in this article about the Bangladesh initiatives, in order to ascertain whether they have the potential to contribute to safe working conditions in the Bangladeshi garment industry, or rather if they should be seen as window-dressing.
Lock-in Patterns among Employees: A Nordic Comparison
Authors: Saloniemi Antti , Furåker Bengt , Nergaard Kristine
Published: April 2022

Using survey data collected in 2010-2011, this article examines patterns of lock-in among employees in the Finnish, Norwegian and Swedish labour markets. Workers are defined as locked-in if they have considerable difficulty in finding an equally good job with some other employer. Empirically we measure the concept by means of the employees' own assessment of their labour market prospects. Our results indicate that lock-in is a matter of the interplay between employers and employees. The proportion of those locked-in is lower in Norway - with its higher demand for labour and lower levels of unemployment - than in Finland and Sweden. Young age and good health are associated with relatively optimistic views of job prospects, probably because these attributes impact on the ability to adapt to the demand for labour and because employers tend to be cautious about hiring older workers and those with health problems. The most significant obstacles to finding another job reported by the respondents are the labour market conditions in their place of residence or within commuting distance and their age.
Rethinking Working Time to Support Older Workers
Authors: Blackham Alysia
Published: April 2022

Flexible working time arrangements may promote and support the employment of older workers, helping to extend working lives. However, existing laws around working time have significant limitations, as working time is largely left to managerial discretion. As a result, working time laws are having limited practical impact in some Member States. There is therefore a need to consider how employment and working practices could be re-envisaged to better suit the modern experience of work and ageing. Drawing on qualitative data from seventeen interviews conducted with United Kingdom (UK) experts in the employment of older workers, this article evaluates the practical merit of working time ideas from the literature. It argues that ideas around working time are difficult to apply to the individualized UK working time model. Thus, we must seriously consider how approaches to working time can be translated into meaningful and practical reforms that effectively mediate the interests of employers and employees.
EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions
Authors: Van den Putte Lore
Published: April 2022

Surprisingly, labour provisions in EU bilateral trade agreements have widened and deepened over the past decade. One would have expected the opposite, given the coming to power of centre-right governments in the early 2000s and a stronger liberalization agenda since 2006. This article addresses this rather remarkable development. First of all it dismisses the argument that protectionist motives underlie the stronger social clauses in EU trade agreements. Instead, drawing on the theory of the life-cycle of norms, it suggests that social trade has become an unobjectionable norm within the EU. The article then offers several explanations for why the social-trade nexus has been barely disputed, and indeed has further expanded through subsequent trade arrangements. These include the stronger influence of the European Parliament, path-dependencies stemming from the EU’s previous template, and the need to gain public support in the face of criticism of free trade agreements. Most importantly, it stresses that the framing of core labour rights as part of a broader ‘sustainable development’ agenda has contributed to their unobjectionable status. While this framing has helped to forge a consensus with regard to the social trade agenda, giving equal status to labour and environmental provisions under the sustainable development umbrella might also have adverse consequences for the concept of labour provisions.
The Dynamics of Common Law Evolution
Authors: Brodie Douglas
Published: April 2022

In Commonwealth Bank of Australia v. Barker [2014] HCA 32 (Barker) the High Court of Australia held that the implied term of mutual trust and confidence was not part of the law of the employment contract in Australia. This article considers the impact that the decision will have on the position of employees at common law and on the way that the law is likely to develop. It suggests that the impact of Barker may be marginalized by the ever increasing importance of good faith in the law of contract and that in assessing the extent to which the common law affords protection for the interests of employees it is imperative to take account of the obligations imposed by the law of tort. Finally, the article explores the dynamics of common law evolution more generally through the prism of Barker. It is suggested that two key factors in determining the manner in which the law develops are the values espoused by the common law and the extent to which statute is allowed to act as a constraint rather than treated as a catalyst.
The Role of Judges in the Regulation of Australian Employment Contracts
Authors: Golding Gabrielle
Published: April 2022

Prompted by the Australian High Court’s decision in Commonwealth Bank of Australia v. Barker,1 this article assesses judicial law-making through terms implied by law in Australian employment contracts. In Barker, the court refused to imply a term of mutual trust and confidence, influenced in part by a judicial disinclination to trespass into the province of the legislature. The article examines what role judges ought to play in regulating Australian employment contracts. It concludes that, following the High Court’s decision in Barker, the symbiotic relationship between statute and the common law ought to be reinvigorated. To facilitate that reinvigoration, the article proposes the creation of statutory default minimum rules for the employment relationship. However, it will also argue that the courts must remain willing to imply terms by law into employment contracts because it is impossible for parliament to predict all future gaps that may need to be filled.
Teaching Law as a Vocation: Local 1330, Promissory Estoppel, and the Critical Tradition in Labour Scholarship
Authors: Fischl Richard Michael
Published: April 2022

A central feature of early work associated with critical legal studies was an effort to ‘break the seal’ between teaching and writing, the supposedly dichotomous dimensions of academic life. This essay locates the link in a ‘demystification’ project – a relentless focus on the recurring rhetorical structures of legal reasoning and argument – and nowhere is it more evident than in critical labour scholarship. The essay offers an extended illustration by deploying a series of critical classroom techniques in a study of Local 1330 v. U.S. Steel, a tragically unsuccessful effort by a union to prevent the closing of a steel mill via promissory estoppel and an early symptom of late twentieth century deindustrialization, the declining fortunes of labour unions, and the shift from labour law to contract law in the legal regulation of the American workplace.
Comparing Labour Laws in the EU Internal Market: A Social Actor Perspective
Authors: Schiek Dagmar
Published: April 2022

The discipline of comparative labour law suffers from a dual crisis: comparative law may seem irrelevant if nation states are pushed back by ever accelerating globalization, and labour law may be rendered irrelevant by the digitalized economy. This article argues that, since states are becoming interdependent instead of superfluous, and work remains a dependent quantity, there is a future for comparative labour law. This future requires an even higher degree of interdisciplinarity with a strong recovery of disciplinary (doctrinal) research. This article develops a social actor-centred approach for comparing labour law and policy in the context of economic integration beyond states, as pursued by the European Union. A comparative project relating to collective labour rights in the EU internal market is outlined as an example of this methodology.
Theories of Domination and Labour Law: An Alternative Conception for Intervention?
Authors: Zahn Rebecca , Cabrelli David
Published: April 2022

In previous work, the authors have sought to demonstrate how a particular strand of contemporary political theory can be usefully adopted to shed valuable light on labour law. In short, the conception of ‘non-domination’ grounded in contemporary civic republican political philosophy and associated with scholars such as Philipp Pettit and Frank Lovett prescribes a sophisticated account of freedom and a socially just order. In the latter’s framework, social justice is secured when laws and policies are introduced to subject private social relationships characterized by dependency and an arbitrary imbalance in social power to a measure of external control. As a subset of a socially just order, the previous work of the authors sought to sketch out how nondomination theory could act as a justification for labour laws. This would conceptualize labour laws as a set of measures that are designed to achieve a degree of ‘non-domination’ in the employment relationship. Labour law achieves this by introducing legal and policy controls limiting the employee’s dependence on his/her employer and restricting the arbitrary power imbalance inherent in the relationship between the employer and the employee. By serving to tone down the level of arbitrary decision-making vested in the employer, the dependency of the employee on the employer, and/or by counterbalancing the degree of power wielded by the employer, it was argued that procedural and substantive labour laws such as unfair dismissal/discharge, minimum wage laws, working time controls, and collective labour and trade union rights can be perceived as measures that are consistent with a legal framework designed to secure a degree of ‘non-domination’ of the worker. In this article, the various advantages of nondomination theory as a justification for labour laws are summarized before the discussion turns to a detailed assessment of the range of objections that can be levelled at such a justificatory framework. In particular, the accusation that it is not descriptively accurate as a model, nor normatively useful as a conception for labour laws, is subjected to greater scrutiny. The article concludes with the general proposition that although Pettit’s and Lovett’s non-domination model is insufficient to act as an abstract justificatory theory for labour laws, it can act as a driver for specific labour laws; and more specifically, for a particular conception or form of labour law that promotes a distinctive set of regulatory techniques, and vision of the role and function of the central notion of the contract of employment. The primary significance of this article rests in the insight that domination-based narratives of civic republicanism have the capacity to act as a bridge between existing individual, relational, autonomous, substantive and procedural accounts of the regulation of the law of the contract of employment and political philosophy: a ‘new normativity’, albeit one that is restricted in scope.
Subordination vs Domination: Exploring the Differences
Authors: Davidov Guy
Published: April 2022

Subordination has long been a key concept in labour law theory. It aims to depict a central characteristic of employment relationships that explains (at least partially) the need for labour laws. More recently there is an increasing interest among labour law scholars with the concept of domination as developed in republican theory. On the face of it, being dominated by an employer appears to be similar to being subordinated to an employer. To assess the relevance and usefulness of domination for labour law, I begin by providing an account of subordination and its different possible meanings. I then examine the different components of the definitions of domination developed by Philip Pettit and by Frank Lovett (with some reference to other scholars), and explore the similarities with, and differences from, the concept of subordination. I conclude that some key parts of domination – most notably the existence of arbitrary power – are not an optimal fit to describe employment relationships and justify labour law. In this respect domination cannot serve as a general theory of labour law. Nonetheless, republican theories are certainly helpful in providing normative support for specific labour laws as well as some other concrete benefits.
From Fixed to Flexible? Wage Coordination and the Collective Bargaining System in Italy
Authors: Tomassetti Paolo
Published: April 2022

This article analyses the rules on wage coordination and their effectiveness in the Italian two-tier bargaining system. It seeks to cast light on bargaining coordination by starting from the analysis of collective agreements, rather than focusing exclusively on normative and institutional aspects of wage bargaining. Accordingly, the study examines a dataset of 498 company-level collective agreements concluded between 2012–2015 in three sectors – metalworking, food, banking and finance – to analyse wage developments in company-level bargaining. The study considers the extent to which local wage negotiations are consistent with the rules on wage bargaining coordination laid down in economy-wide agreements and national collective labour agreements. Wage coordination rules are generally respected, though a significant number of company-level agreements still provide fixed-rate pay rises in breach of the rule that wage increases at company level should be linked to productivity and other factors relating to the workers’ and/or the firm’s economic performance. Although the violation of wage bargaining rules between national agreements and company-level collective agreements is in line with the favourability principle, it is argued that local negotiations on fixed-rate pay rises could be regarded as a form of uncoordinated decentralization, diminishing the effectiveness of horizontal coordination policies and the normative role of the social partners.
You Can Leave Your Hat on, but Not Your Headscarf: No Direct Discrimination on the Basis of Religion
Authors: Busschaert Gautier , De Somer Stéphanie
Published: April 2022

In its judgments in the Achbita and Bougnaoui cases, the Court of Justice of the European Union applied Directive 2000/78 establishing a general framework for equal treatment in employment and occupation to cases in which employees were dismissed because they refused to remove their headscarf when coming into contact with customers. This article offers a critical assessment of the Court’s reasoning and conclusions. In Achbita, the Court ruled that a prohibition on wearing an Islamic headscarf, arising from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of the Directive. However, various counter-arguments can be raised against this conclusion, which the Court does not address. The Court acknowledged in Achbita that an employer’s wish to pursue a policy of neutrality in its relations with customers is a legitimate aim that can justify an indirect distinction based on religion. In Bougnaoui, however, it warned that the willingness of an employer to take account of the wishes of the customer no longer to make use of the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive. It is not entirely clear how these conclusions on the ‘legitimate aim test’ relate to each other and how they can be reconciled. Finally, the Court’s guidance to the referring judge on the proportionality test in Achbita gives rise to a series of questions. Its approach to the necessity test leaves remarkably little room for the national judge to make an assessment based on the particularities of the case. The absence of any guidance when it comes to proportionality in the strict sense is equally striking.
Social Media and Workers Rights: What Is at Stake?
Authors: Del Punta Riccardo
Published: April 2022

This article addresses the way in which the growing use of social media is changing the employment relationship. Technology has given rise to a huge increase in the amount of information about employees available to employers, while allowing them to engage in invasive monitoring of employee access to the internet and social media. This highlights the importance of regulatory techniques, as employees have become more exposed to monitoring by the employer and potentially to discrimination. In certain cases, the employee’s freedom of expression is at risk. To counteract these tendencies, privacy laws, recently reinforced in the EU by the General Data Protection Regulation or GDPR, and more generally the principle of proportionality, can represent effective instruments to prevent technology from exacerbating the condition of subordination of employees.
Social Media and Worker Organizing Under US Law
Authors: Rogers Brishen
Published: April 2022

In recent years, a number of important social movements have emerged and grown rapidly through social media. Against that backdrop, this essay considers the promise and limitations of social media as a tool for worker organizing under US law. On the one hand, social media is both a powerful tool of self-organization, and a powerful means of building public support for workers’ campaigns. US law also prohibits employers from retaliating against workers for such self-organization or public speech, which should encourage workers to organize via social media. On the other hand, that prohibition is often more formal than real, and US law makes it extremely difficult for workers to organize a union and begin collective bargaining. In other words, US law encourages workers’ initial, nascent steps towards collective organization, and encourages them to build public support for their efforts, but discourages the actual formation of unions. Therefore, social media’s enormous potential as a worker-organizing tool will likely remain underdeveloped without reforms to strengthen and modernize our labour laws.
The European Employment Strategy, the European Social Pillar and their Impact on Labour Law Reform in the European Union
Authors: Rogowski Ralf
Published: April 2022

The article provides a critical account of the impact of the European Employment Strategy (EES) on national labour market policies and labour law systems. It gives an overview of the development of the EES from the 1990s until the introduction of the European Social Pillar (ESP) and analyses its impact in the Member States of the European Union. In particular, it highlights the origins of the EES in debates about European Economic and Monetary Union (EMU) and examines the importance and the specific nature of the new governance approach adopted by the EES and its significance for labour law reform in the Member States. The article argues that the latest stage in the development of European social policy, associated with the introduction of the ESP, has not led to a change in direction in European social and employment law and policy. Despite its rights-based approach, the ESP merely constitutes the latest stage in the development of the EES and continues in its attempt to prioritize labour market policy concerns in reforming labour law. However, the article also argues that the ESP has potential to be the platform for a proper Social Union.
Constituting a Right to Association: A Postcolonial Exploration
Authors: Routh Supriya
Published: April 2022

In this article, I emphasize the social realm, rather than legislative action or judicial enumeration, as the preferred site for understanding the constitution of the legal right to association. I argue that the substance of a right – what we understand when we claim a right – emerges through contextual socio-historical processes before it penetrates the imagination of either the legislature or the judiciary. This emphasis on the social realm in understanding the contour of a right is particularly important for postcolonial societies such as India, where a Western universalist rights language is constitutionally adopted to unify a country that comprises heterogeneous socio-cultural milieux. Partha Chatterjee articulates this disjuncture by offering a distinction between the formal (constitutional) civil society and the informal political society. Drawing on Chatterjee’s distinction and interpreting historical ideas and their continued relevance on the nature of industrial relations, I show how the judiciary failed to take note of, and the legislature only belatedly reacted to, the validity of worker cooperatives as a legal right to association even when it received broad social recognition.