bluuebunny/crossref_metadata_2025 huggingface dataset:
Autonomy of the EU Legal Order: A Concept in Need of Revision?
Authors: Öberg Marja-Liisa
Published: April 2022

The issuing of Opinion 2/13 on the European Union’s (EU’s) accession to the European Convention on Human Rights by the Court of Justice of the EU (CJEU), followed by Case C- 284/16 Achmea and Opinion 1/17 on the compatibility with EU law of the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), brought the concept of the autonomy of the EU legal order to the persistent limelight of scholarly attention. An important yet unanswered question that arises in the light of the CJEU’s case law is to what extent the concept of the autonomy of the EU legal order or its specific application by the CJEU has been outlived in the context of EU external relations. Closely connected to the expansion of the EU’s normative influence globally and in its neighbourhood is the necessity to set up effective institutional and procedural frameworks, including judicial protection mechanisms. The keen protection of the autonomy of the EU legal order in such instances conflicts sharply with the Union’s interests and foreign policy strategies and may well warrant a review of the current paradigm of the autonomy of the EU legal order. This article provides a critical account of the compatibility of the concept of autonomy as developed by the CJEU over the past several decades with the Union’s aspirations as a normative superpower.

Autonomy, EU legal order, Opinion 2/13, Achmea, Opinion 1/17, unity, effectiveness, norms export, EU external action, European Economic Area
The GDPR and Processing of Personal Data for Research Purposes: What About Case Law?
Authors: Reichel Jane
Published: April 2022

Case law regularly includes personal data on identifiable persons, often of a rather sensitive nature. This makes the EU General Data Protection Regulation (GDPR) relevant. However, the processing of personal data in case law has until recently not been questioned from the point of view of data protection of the individuals concerned. The Court of Justice of the European Union has taken steps ensure such protection for individuals appearing before the courts. Sweden has chosen another path. As transparency is a highly treasured in Sweden, including transparency in the judiciary, restricting access to the full verdict is sensitive. Instead, the processing of personal data has been restricted in a certain areas, such as research. In order to fulfill the requirements for an ‘appropriate safeguard’ under Article 89 GDPR, an ethical approval is needed for all research on specific categories of sensitive personal data, with no exception for publicly-available official documents like case law. The question posed is how the interest in protection of personal data retrieved from case law can be reconciled with the interest in transparency of the judicial process. It is concluded that even though requirements for an ethical approval of legal research hardly can be seen as a relevant ‘appropriate safeguard’, it cannot be denied that there is a legitimate interest of identifiable persons in case law to have their rights in personal data at least considered. Courts should therefore be stronger in elucidating when and why transparency is of overriding importance, and when and why data protection and the interest of secrecy should prevail.

Data protection, transparency, case law, official documents, secrecy, sensitive data, research exception, appropriate safeguard, ethical approval
Challenging Administrative Sovereignty: Dimensions of Independence of National Regulatory Authorities Under the EU Law
Authors: Szescilo Dawid
Published: April 2022

The EU standards on independence of national regulatory authorities (NRAs) expanded significantly over the past two decades, including the most recent legislative developments relating to competition authorities and regulators in the sectors of audiovisual media and electronic communications. They appear to gradually challenge the principle of administrative sovereignty enabling the Member States to shape their administrative structures autonomously. The major aim of this article is to investigate the concept of independence, established in various acts of the EU law with regard to NRAs. In particular, the main attributes of ‘EU-made national independent authorities’ are explored, as well as the limitations of their autonomy deemed legitimate under the EU legislation. After reconstruction of the phenomenon of independent regulatory authorities, the paper reviews the EU standards on their independence. It then discusses similarities, differences and inconsistencies in interpreting the overarching principle of independence across various areas of the EU legislation, considering also additional guidelines stemming from the CJEU’s case law. Finally, the paper provides a summary of the main attributes of administrative independence guaranteed by the EU law to national regulators and analyses to what extent they pose a challenge to the principle of administrative sovereignty of the Member States.

national regulatory authorities, administrative independence, administrative sovereignty
National Identity and the Protection of Fundamental Rights
Authors: Claes Monica
Published: April 2022

The article asks whether the European Union (EU)’s duty to protect national identities is a useful way to address diverging conceptions of fundamental rights, and it argues that it is not. On the basis of an examination of the text of Article 4(2) TEU, its history and the practice of the Court of Justice, it is argued that the concept of ‘national identities’ under Article 4(2) TEU does not cover particular national conceptions of fundamental rights, but admits that it may be difficult to make a clear separation between the more organizational or structural elements of national identity and their impact on the fundamental rights of individuals. The article then proceeds to look at national approaches, where fundamental rights tend to be included in the concept of constitutional identities to be protected by national courts. It is argued, however, that arguments based on constitutional identity under national law are not conducive for deciding cases on EU fundamental rights. Such identity claims operate as trump cards. Yet, there are other ways to accommodate diversity among the Member States in the area of fundamental rights. If these are used and respected also by the Court of Justice, unilateral recourse to constitutional identity is not needed.

Constitutional identity – national diversity – protection of fundamental rights – identity review – divergence – harmonization of fundamental rights protection – national choices
Book Review: G. Di Federico, L’identità nazionale degli stati membri nel diritto dell’Unione Europea. Natura e portata dell’art. 4, Par. 2, TUE [National Identity of Member States Under EU Law: The Nature and Scope of Article 4(2) TEU], Editoriale Scientifica. Naples. 2017.
Authors: Caruso Corrado
Published: April 2022

Constitutional identity, EU law, constitutional law, EU member states
A Social Policy Agenda in European Public Procurement Law and Policy
Authors: Bovis Christopher
Published: April 2022

This article presents the legal regulation of public procurement in the European Union within a broader framework of interrelated policies and in particular social policy. The analysis reveals the public policy interface of public procurement and the socio-economic parameters under which it operates in the Member States.
Health and Safety Regulatory Framework – A Comparative Perspective
Authors: Howes Victoria
Published: April 2022

Abstract: The development and application of health and safety laws in a country depend on several aspects including, in particular, the historical development of the legal system and laws in the country concerned and the impact of the international and supranational laws and regulations. Since the European Community has a common legal framework, it is tempting to conclude that health and safety laws in the Member States should be the same. However, there are some significant differences in the application of the law. For example, the enforcement practices vary from country to country and different liabilities can be imposed on the employer for breach of the statutory requirements. Four areas of health and safety law, that is employer’s duties and responsibilities, enforcement, liability and sanctions will be considered in this article in three Member States: Germany, Sweden and Finland, with a comparative perspective in relation to the United Kingdom.
New Hopes for French Anti-Discrimination Law
Authors: Berthou Katell
Published: April 2022

Abstract: This article provides an analysis of the recent legal developments in France in the field of equal treatment and equal opportunity in the workplace. It begins with a survey of the situation prior to 2001, paying special attention to the failures of French law, in particular where the burden of proof and indirect discrimination are concerned. It then proceeds to examine the two statutes enacted in 2001. In an attempt to implement EC Directives 2000/43/EC and 2000/78/EC these statutes provide additional incentives for collective bargaining on sex equality, an extension of the scope of protection against discrimination, a new regime as regards the burden of proof and measures to ensure more effective judicial protection.
Fundamental Characteristics of Thai Labour Law and the Direction of Reform
Authors: Yoshida Mikio
Published: April 2022

Abstract: In the context of globalization, it has become necessary to understand Thai labour issues, since Thailand has strong economic ties with advanced capitalist countries. The first Thai Labour Act was introduced in 1956. However, a series of coups d’état were then carried out in Thailand, resulting in the dissolution of trade unions and abolition of labour law, and in about 1960 the Authoritarian Political Regime for Development was established. Under this system trade unions were strictly regulated and terms and conditions of work were regulated by notifications of the Ministry of the Interior. However, as the Thai economy and democracy have developed, Thai labour law has also changed. The Labour Protection Act was introduced in 1998 through deliberations in Parliament. Moreover, deliberations on the amendment bill of Labour Relations Act started at the end of the 1990s and at the moment there is some controversy about the revision. If the draft bill is enacted, the characteristics of labour law under the developmental regime will to some extent be changed. It is therefore necessary to pay attention to the development of legal reforms.
Síofra O’Leary, Employment Law at the European Court of Justice: Judicial Structures, Policies and Processes
Authors: Kenner Jeff
Published: April 2022

Labour lawyers often feel deeply ambivalent about the European Court of Justice. Few can doubt the pivotal role played by the Court in shaping the contours of European Community employment law. The Court has breathed life into the dry language of Treaty provisions and Community legislation in areas such as equal pay and acquired rights, enabling individuals to use the law as a sword against their employer and/or Member State in the national courts. Community law has also, in the hands of the Court, provided a shield for the protection of collective systems of social organisation and distribution against untrammelled market forces. However, for every advance, the Court’s detractors can point to a retreat: the potential of P v S was soon limited in Grant; Schmidt was trumped in Süzen; and BECTU was narrowed down in Bowden. Cases such as Albany International and SchrÃ¶der, initially lauded, have, on closer inspection, left a mixed and uncertain legacy. For all of these reasons – and more – a book that places the work of the Court of Justice at the centre of its examination of Community employment law is both timely and welcome.
Report on the Conference on ’The Lisbon Strategy, Human Capital and Organisational Innovation’, Rome, March 2005.
Authors: Bromwich William , Rymkevich Olga
Published: April 2022

It was fitting that the Conference on the Lisbon Strategy held at the LUISS University in Rome on 18-19 March in commemoration of Marco Biagi should include a wide range of speakers, not just labour law and industrial relations scholars, but also economists and sociologists, as well as political leaders, industrialists, trade unionists and journalists. In his opening remarks, Pier Ferdinando Casini (President, Italian Chamber of Deputies) underlined Biagi?s intellectual integrity and his ability to see beyond ideological barriers in the debate about the future of the labour market. Although the State failed to defend him from the terrorists who assassinated him, the accused are now standing trial, and the verdicts and sentences are due in the coming months. With regard to the Lisbon Strategy, the social partners are called on to play a part and social consensus is an important means for identifying the most effective solutions. Marco Biagi?s approach will enable Italy to meet the challenges: he was ?un grande amico e un grande italiano?.
New Grounds for Anti-discrimination: the Roles of Equality Commissions in Law Enforcement in the UK and Germany
Authors: Wank Rolf
Published: April 2022

Abstract: This article argues that new legislation implementing the Framework Employment Directive prohibiting discrimination on grounds of religion, belief or sexual orientation will make no impact on employers? practices and behaviour, unless they are underpinned by enforcement mechanisms similar to those provided under the current anti-discrimination law. In this regard, the article explores the existing framework for enforcement of anti-discrimination law by existing equality bodies in the UK and in Germany and supports the proposals for the establishment of single Equality Commissions in both countries. The article states that the issues of enforcing the new grounds of anti-discrimination should be addressed before the new Commissions come into existence.
The Legal Position of Employees’ in Cross-Border Transfers of Undertakings in the EU: A Question of Jurisdiction and Choice of Law
Authors: Malmberg Jonas
Published: April 2022

Abstract: The EC Transfer of Undertakings Directive (2001/23/EC) aims to protect the position of employees in the case of a transfer of undertaking. This paper discusses the way in which the Directive is to be applied to cross-border transfers of undertakings. The analysis indicates that, in principle, the Directive is applicable to such transfers. Since the Directive must be implemented under national law, this involves different national rules for transfers of undertakings, even if they are harmonised to some extent. As a result, one key issue concerns which country?s law is to apply and which country?s courts have jurisdiction to hear disputes arising from cross-border transfers.
Temporary Agency Work in Germany and Australia: Contrasting Regulatory Regimes and Policy Challenges
Authors: Burgess John , Mitlacher Lars
Published: April 2022

A common development among OECD and EU countries is the increase of temporary agency work in the last decade despite different regulatory regimes. For the researcher, agency work is an interesting topic as it is part of the romance of flexible working patterns, the new economy and a new type of employment arrangements; but is also part of a process that undermines employment conditions, collectivism and workers’ rights. Using Germany as an example of a country with a highly regulated temp industry and Australia as a country with very little regulation in this area, the paper outlines the growth and extent of agency employment in each country and examines the regulatory regime that applies in each country. The regulation of temporary agency work in Germany and Australia will be contrasted with the proposed legislation by the European Directive on temporary agency work in order to develop new proposals for an advanced supra-national regulatory approach on temporary agency work.
Temporary? Agency Workers in Israel
Authors: Wallach Shelley
Published: April 2022

While in many western countries temporary agency work has been spreading and growing fast due to the pace of globalization with its pressure for greater flexibility and the reduction of labour costs on the one hand, and rising unemployment on the other, in Israel this form of employment has reached unparalleled proportions both in the private and the public sectors. This paper aims to give an overview of Israeli temporary agency work in all its forms, examining the problems that arise from this widespread form of employment and its impact on Israeli society and the labour market. A comparison will be made with other EU countries, mainly Germany. Finally, some recent developments and possible solutions will be discussed.
Restatement – Technique and Tradition in the United States
Authors: Kohler Thomas C.
Published: April 2022

This paper considers the meaning and development in a historical perspective of what Americans mean by labour law. The author highlights the fact that employment law in the United States consists of a patchwork of state regulation with a variegated federal overlay. He also discusses the development of the restatement tradition in the United States and examines the course and the current status of the Restatement of Employment Law project promoted by the American Law Institute (ALI), taking account of the fact that the character of employment has changed radically in the past two decades, and has yet to reach anything like stasis.
Lifelong Learning and Social Partnership: A Comparative Overview of Twelve European Countries
Authors: Perin Emmanuelle , Léonard Evelyne
Published: April 2022

The notion of ‘lifelong learning’ (LLL) has gained in importance in the European debates since the 1990s, together with the assumption that the social partners at European and national levels should be actively involved in harmonized policies in the field. The paper questions the possibility and potential for such an active involvement of national-level trade unions and employer organizations in European policies of LLL. Based on comparative empirical data collected in twelve Member States, the paper shows that social partnership in LLL seems to be a distant objective in a number of national cases, notably because there is no consensus on its aims, and because the national institutional context prevails in the determination of their role in education and training.
The Enforcement Crisis in Labour Law and the Fallacy of Voluntarist Solutions
Authors: Davidov Guy
Published: April 2022

Labour laws are facing an enforcement crisis: a large and increasing number of employers fail to obey them. This paper begins by putting forward a number of reasons for this development, which carries with it harsh consequences for many workers around the world. It then warns against the trend towards ‘soft law’ solutions that include a voluntarist component. Although these ‘soft’ regulations that aim to create positive incentives could certainly be useful in the labour law context, when invoked as a solution to compliance problems they translate into an unjustified lowering of standards. The paper then moves to examine solutions used or proposed in the context of cleaning and security workers in the Israeli public sector, as a case study. A proposed solution in the context of identifying the real employer, that includes a voluntary component, is criticized as an example of unjustified deregulation. Two additional solutions – one to reject repeat offenders and the other to prohibit money-losing contracts – are used to show that incentive schemes can be used successfully to improve compliance without voluntary components that result in lowering standards.
The Proper Law of the Individual Labour Contract: Some Perspectives from Southern African Private International Law
Authors: Mpedi Letlhokwa George
Published: April 2022

This contribution assesses the proper law of the individual labour contract in southern Africa (i.e., Botswana, Lesotho, Namibia, South Africa, Swaziland and Zimbabwe). It addresses this by firstly discussing the freedom of choice with an emphasis on the principle of free choice and the limitation of party autonomy. It proceeds by examining the applicable law in the absence of choice of law. Furthermore, this article discusses the question of whether southern African countries should ‘consider’ international instruments on the law applicable to contractual obligations (such as European Community Regulation on the Law Applicable to Contractual Obligations, 2008). If so, what would be the best approach for southern African countries to ensure that their private international law benefits from these instruments?
Military Unionism and the Management of Employee Relations within the Armed Forces: A Comparative Perspective
Authors: Heinecken Lindy
Published: April 2022

Many find the prospect of military unions totally inimical to the nature and functioning of the armed forces. Yet, a number of countries allow some form of military unionism, while others vehemently resist any form of independent union based on the premise that this undermines discipline, cohesion, and loyalty. This article examines how four different countries – the United Kingdom, Canada, South Africa, and Germany – have dealt with the issue of military unionism. The British Armed Forces, like many other English-speaking countries, have tended to approach employee relations from a typically unitarist position, which translates into union suppression or avoidance. The Canadian Armed Forces opted to circumvent the need for a military union by adopting a more human relations or neo-unitarist approach to employee relations. In South Africa, the military has been obliged by legal decree to accept a more pluralist dispensation, which has led to an overtly confrontational employment relationship. In Germany, where a union-like professional association exists, the approach has been more cooperative, even corporatist, typifying the European experience and philosophy towards unions, even in the military. In analysing the management of employee relations from these different typologies, the implications of union avoidance and acceptance within the armed forces are evaluated.
Performance-Related Pay and Employees Responses in the Chinese Education System
Authors: Shen Jie , Huang Binhua (Eva)
Published: April 2022

Human resource management in the Chinese public sector has been largely under-researched. This study explores performance-related pay (PRP) practices and employees' responses to these practices in the Chinese education system. It concludes that the PRP scheme has been widely implemented in China and has been well received by Chinese high school teachers in terms of improving employee performance. Chinese high school teachers highly regard PRP for three reasons: first, PRP, as 'prize money', is believed to increase employee income; second, itemized performance criteria help reduce subjectivity; and third, small differences in PRP between employees mitigate unhealthy competition. This study adds to the knowledge base of PRP in the public sector.
Cross-Border Trade Union Action in a Canadian Multinational Corporation
Authors: Hennebert Marc-Antonin , Bourque Reynald
Published: April 2022

While collective bargaining processes centred on national actors remain the backbone of industrial relations systems, we see the emergence of new forms of collective bargaining within multinational corporations (MNCs), leading to the ratification of international framework agreements (IFAs). The growing importance of IFAs raises many questions regarding, first of all, the characteristics of the international trade union actions and negotiation processes leading to such agreements and also the relevant theoretical model for analysing them. In this regard, this article has a twofold objective: on an empirical level, to document a case involving a cross-border trade union alliance and the negotiation process, which led to one particular IFA, and, on a theoretical level, to evaluate, on the basis of this case study, the relevance of the classical theory of Walton and McKersie as a framework for analysing international collective bargaining processes.
Soft on the Inside, Hard on the Outside: An Analysis of the Legal Nature of New Forms of International Labour Law
Authors: Kun Attila , García-Muñoz Alhambra M. Antonio , Haar Beryl ter
Published: April 2022

With the internationalization of companies, labour issues, such as working conditions, have moved beyond the confines of national law and become subject to the transnational legal ambit. To regulate these issues, an increasing variety of instruments is used. Two fairly new instruments, in this respect, are unilateral codes of conduct that are concluded in the context of corporate social responsibility, and international framework agreements concluded by multinationals and global union federations. Both instruments are labelled as soft law since they are legally non-binding but are intended to generate normative effect. To gain a better understanding of the legal functioning of these instruments, this paper introduces an analytical framework that builds on the work in particular of Gamble, Abbott et al., Raustiala and d'Aspremont. The framework is comprised by three features of law: lawfulness, substance, and the structure to ensure compliance, with each feature divided into several elements. The analysis of the two instruments in this perspective based on a narrow and rather strict analysis within the framework suggests that the two instruments are very soft. However, based on a more reflective analysis, we find that both instruments are much harder on the outside than the (formal) inside suggests.
Labour Law and Employment Policy in the EU: Conflict or Consensus?
Authors: Rodgers Lisa
Published: April 2022

This article considers the interaction between labour law and employment policy at European Union (EU) level in the light of recent political and legal developments. It begins with a consideration of the relationship between labour law and policy as a function of the political compromise at the foundation of the EU (i.e., its establishment on an economic rather than social basis). This article then discusses the application of the relationship between labour law and policy in terms of the policy provisions of Directive 2000/78 (derogation on 'employment policy grounds') as opposed to the policy provisions of the atypical work directives (the policy of 'flexicurity'). It considers these directives in the light of the recent development of case law in this area (e.g., Case C-555/07, Ku¨ku¨kdeveci v. Swedex Gmbh & Co. KG and its relationship to C-144/04, Mangold v. Helm ) and illustrates the difficulties of the inclusion of policy objectives within the law. This article then goes on to assess the future relationship between law and policy in the EU and particularly the potential impact of incorporation of the Charter of Fundamental Rights and Freedoms 2000 into the Lisbon Treaty on the development of labour law and policy.
Global Care Chains: Transnational Migrant Care Workers
Authors: Fudge Judy
Published: April 2022

This article provides a critical analysis of the role of transnational migrant workers providing care and household services in an age of globalization. On the demand side, the feminization of migration is linked to the increase in women's labour force participation, falling birth rates, increasing life expectancy, changes in family structure, and the shortage of public care. On the supply side, it is argued that remittances are key for the survival of households and communities in a number of developing countries and that exporting workers is one means by which governments address the problems of unemployment and foreign debt. The concept of the global care chain serves to cast light on the social processes associated with the transnational transfer of domestic labour.
Democratic Pre-conditions for Strike Action: A Comparative Study of Australian and UK Labour Legislation
Authors: Novitz Tonia , McCrystal Shae
Published: April 2022

In this article, we investigate legislative controls on the ability of workers and their organizations to take strike action, which raise fundamental questions relating to the application of democratic principles in a workplace setting. We trace the introduction of legislative provisions in Australia and the UK which sought to impose 'majoritarian' forms of democracy on trade union structures, by requiring ballots before such action could be taken. We recognize that these statutory pre-conditions are problematic both in terms of their aims and effects. Yet, what is arguably more worrying is the new institutionalization of deliberative pre-conditions for industrial action in the workplace. In Australia, this has taken the form of a requirement that a ballot applicant has 'genuinely tried to reach agreement', a requirement that continues to apply during any actual industrial action. In the UK context, the scope of protection from unfair dismissal (beyond a twelve-week period) will be affected by whether the union has complied with procedures established by an applicable collective or other agreement, offered or agreed to commence or resume negotiations, and has not unreasonably refused a request that conciliation or mediation services be used. In both countries, there seems to be growing pressure in policy terms for strikes to be very much a last resort, as statutory support for bargaining in good faith becomes stronger. We argue that these deliberative democratic controls of strike action are misguided. A richer understanding of deliberative democracy should, in our view, offer greater space for workers to voice their opposition in negotiations with employers.
Having the Right Attitude: Cooperation Skills and Labour Law
Authors: Votinius Jenny Julén
Published: April 2022

This article deals with the legal understanding of the demands in working life on employees' ability to cooperate. The concept of cooperation ability is here used in the sense of an ability to actively facilitate communication and foster relationships with colleagues and supervisors through flexibility and commitment, and thereby benefit the employer's business. Special attention is paid to the discourse on employability in the employment policies at the EU level, and on the understanding of cooperation as a field in which it is possible to possess and acquire specific skills. The main aim of the article is to survey and conceptualize the demands on employees' ability to cooperate in labour law, and to explore a number of important legal questions relating to employees' ability to cooperate. The purpose is primarily exploratory, in the sense that the article seeks to discern new and special problems confronting labour law as a result of the increased demand for employee's cooperation at work. To this end the article identifies three important issues: the legal implications of the fact that the employer is free to take the employee's ability to cooperate into consideration when making work-related decisions, the question of the extent to which the employment contract can be said to include a duty to cooperate, and the legal implications of the fact that employees are sometimes unable to cooperate due to external factors at work. These three issues provide the structural basis for the discussion, which, primarily with the use of examples from the Swedish setting, seeks to identify some key questions in labour law arising out of a legal development that involves an acceptance of stricter requirements on employees' ability to cooperate.
Retirement Reform in South Africa: The Influence of International Social Security Standards and Human Rights Instruments
Authors: Malherbe Kitty
Published: April 2022

The unique retirement funding system in South Africa, encompassing social assistance for older persons, occupational retirement funds providing retirement benefits to members and private retirement savings, is undergoing radical reform. Due attention has to be given to international human rights instruments and social security standards in the design of any new legislation dealing with retirement. This article commences with a brief overview of why reform of the South African retirement funding system is required and a case is made for intergenerational solidarity as a core principle on which the reforms and future legislation on older persons should be based. It then examines selected international standards related to retirement, and highlights areas where statutory reform is required to bring South African law in line with these standards. The main focus of the paper is on the seemingly divergent views of international organizations on the extent to which intergenerational solidarity should form the basis of retirement reform. It is suggested that, although none of the International Labour Organization's (ILO) core social security standards have been ratified by South Africa, the ILO still has an important role to play in providing guidance in respect of retirement funding reform, based on its clear preference for solidarity-based national social security schemes.
Has Australias Road to Workplace Partnership Reached a Dead End?
Authors: Burgess John , Brown Kerry , Wilkinson Adrian , Townsend Keith
Published: April 2022

Over the last fifteen years, a number of developed countries have pursued an agenda seeking to develop more collaborative management-union arrangements often labelled as partnerships. This article reviews the Australian road to partnerships by situating it within the context of developments in the UK and New Zealand. In 2009, Australia's then Deputy Prime Minister and Minister for Workplace Relations, Julia Gillard, suggested that Australian Industrial Relations were about to undergo a shift towards a new model of workplace interaction that included more collaboration and partnerships. We argue that rather than a substantial shift, this approach can be viewed as an evolution from the Accord years, disrupted for a period by the Howard Government. However, unlike similar regulatory regimes in the United Kingdom and New Zealand, the Australian Government has done little to entrench a system of partnerships at the workplace level. This article assesses the extent to which collaboration and partnership in Australia's modern IR system provides a roadmap to a new Australian IR landscape, or whether the failure of policy-makers to act has led to a dead-end for Australian partnerships. The practical implications of this agenda for the conduct of industrial relations are considered.
Integrative Employment and Social Security Rights
Authors: Lurie Lilach
Published: April 2022

Workers today face many labour market transitions (e.g., between work and caring for family members). This article is intended to make two main contributions to the ongoing debate on how the law should regulate labour market transitions. First, it aims to promote a better understanding of existing and theoretically possible employment and social security provisions by placing them on a spectrum of regulatory models, from individual to integrative regulation. Second, it examines the concept of Integrative Employment and Social Security Rights (IERs), as one of the models on the spectrum. IERs are legal rights that apply to workers in several or all labour market transitions (e.g., the right to request working reduced hours). The application of IERs has several justifications (e.g., promoting individual autonomy and fighting discrimination) tempered with considerations that would at times limit their usage (e.g., inefficiencies). By presenting the justifications for IERs as well as the limitations on their normative application, the article provides a possible roadmap for rethinking employment and social security law.
An EU Perspective on Age as a Distinguishing Criterion for Collective Dismissal: The Case of Belgium and The Netherlands
Authors: Foubert Petra , Peeters J. , Langhendries E. , Marocchi N.
Published: April 2022

As a result of the economic crisis in the European Union, many companies have been forced to reorganize their activities in an attempt to cope with the substantial difficulties they face. Collective dismissals may be the ultimum remedium for the company to survive. This article considers whether an employer can dismiss an employee, merely based on age and, more specifically, pursuant to national legislation containing an age-pyramid principle ( Belgium) or mirror-principle (the Netherlands). EU legislation and case law on discrimination on the basis of age are analysed to establish whether age can be used as a criterion to distinguish among employees within the framework of collective dismissals. Since the Court of Justice of the EU (CJEU) judgment in Odar, age-based measures taken by the social partners to ensure the survival of the undertaking would appear to be acceptable, in line with a more substantive approach to equality. However, a number of critical points need to be examined in this respect, such as whether the social partners can act as institutions promoting equality of all kinds.
Employer-Centred Benefits and the Atypical Workforce
Authors: Hiessl Christina
Published: April 2022

This article investigates several areas of social protection, which are dependent on typical features of standard employment contracts in a number of countries and consequently inaccessible for atypical categories. A comparative overview of European legal orders should provide an idea of the possibilities, expected gains and drawbacks of severing the ties between benefits and individual employers, with a view to extending protection to atypical contractual relationships.
The Informal Economy and the ILO: A Legal Perspective
Authors: La Hovary Claire
Published: April 2022

Many workers, employers and enterprises around the world are, to varying degrees, in a situation of 'informality'. Although intuitive, the notion of 'informality' is however not easy to define. For many, it evokes a sense of hardship, characterized by precarity, vulnerability, poverty, exploitation and exclusion, for example. It can however have very different connotations for others, who might associate 'informality' with autonomy, entrepreneurialism, or freedom from bureaucratic constraint. Whatever the perspective, however, 'informality' can have a whole range of different potential causes, and their identification, as well as the remedies suggested to overcome them, will vary. Having said this, the concept of 'informality' arguably poses a number of specific challenges from a legal perspective, more specifically concerning how the notion fits within the international and national legal framework relating to the protection of workers. This article proposes to examine these challenges, and the evolution of the understanding of 'informality' within the International Labour Organization (ILO), in light of the recent suggestion that the ILO adopt a recommendation on 'facilitating gradual transitions from the informal economy to the formal economy'. The ILO is an important reference point when discussing informality, on the one hand because of its role in introducing the notion into global development debates, and on the other hand, because of its important role with regards to improving working conditions, and the concerns raised by informality in this respect.
Discrimination against Part-Time and Fixed-Term Workers: A Critical Legal Positivist Analysis
Authors: Pettersson Hanna
Published: April 2022

The European Union (EU) Part-Time and Fixed-Term Work Directives extend non-discrimination law to specific types of employment contracts, otherwise usually regulated by means of more concrete and detailed provisions. In this article, non-discrimination law is analysed as an expression of a conflict between the actual and formal subordination of the employee, on the one hand, and an inherent legal presumption of individual autonomy, on the other. Inspiration is drawn from Kaarlo Tuori's critical legal positivism and the concept of social law developed by François Ewald. From this perspective, case law on discrimination of part-time and fixed-term workers is examined. It is argued that terms such as direct and indirect discrimination, and comparability, obscure the balancing of interests that is at the heart of non-discrimination law.
Pregnancy Discrimination in the National Courts: Is There a Common EU Framework?
Authors: Mulder Jule
Published: April 2022

As a case study this article compares how German and Dutch courts integrate the European equality framework within their national systems using pregnancy discrimination in the field of employment law. In the European Union (EU), the principle of non-discrimination is well developed and prohibits vertical as well as horizontal discrimination in order to foster substantive equality. Today, it is one of the key elements of the EU human rights policy and covers a wide range of protected grounds. As a result, national courts cannot ignore the EU equality framework. However, the reception of EU non-discrimination law still depends on the national legal and cultural background and, in particular, the response of the national courts to the European challenge to readdress national understandings of equality, which often focus on vertical relationships alone. This article evaluates how and to what extent the EU non-discrimination law framework has impacted on national approaches to pregnancy discrimination. It highlights the differences between two Member States and national influences on the application of the EU rules but also demonstrates the EU influence, which can promote the development of a coherent equality framework, though it may also hinder such a development.
Migration and Sustainable Development in the EU: A Case Study of the Seasonal Workers Directive
Authors: Fudge Judy
Published: April 2022

Most discussions of the EU’s development agenda that emphasize the social dimension of globalization in general or labour rights and standards in particular tend to focus on either trade agreements or aid. However, in 1999, the EU explicitly linked migration to its development objectives, and in 2011, the European Commission launched the Global Approach to Migration and Mobility (GAMM), which lists ‘maximizing the development impact of migration and mobility’ as one of its four pillars. A distinctive feature of the GAMM’s approach is that migrants are placed at the centre and their human rights are to be mainstreamed throughout the migration cycle.

To what extent is the GAMM’s commitment to migrants’ rights being put into practice? How does the GAMM’s emphasis on migrants’ rights impact upon development? Using the recently adopted Seasonal Workers Directive as my focus, I will attempt to address these questions. First, I will examine the extent to which the Directive protects migrant workers’ human rights and ensures that they have access to meaningful labour standards. Second, I will explore the extent to which the Directive facilitates circular migration, which is seen as a key component of development-oriented migration. Third, I will consider the relationship between this Directive and Mobility Partnerships, which are the EU’s key instruments for linking migration to development, when it comes to migrant workers’ rights and circular migration.
Precarious Posted Worlds: Posted Migrant Workers in the Dutch Construction and Meat Processing Industries
Authors: Berntsen Lisa
Published: April 2022

The posting of migrant workers has become an important employment channel for cross-border employment within the European Union (EU). Although posted workers are not formally excluded from labour rights, regulations are enacted in such a way that de facto they often are, as posted workers face many irregularities in their employment relations, while receiving hardly any protection from established representation and law enforcement authorities. Drawing on qualitative interview research in the Dutch construction and meat processing sector, this article shows how posted employment creates socio-economic precariousness for the workers involved. Although migrants in the meat sector have more opportunities to fight the exclusionary effects of posted employment because they usually reside for longer periods in the Netherlands than the more mobile migrants in construction, both groups of workers experience similar social and economic vulnerabilities, and a lack of protection mechanisms to change their precarious position.
The Kindness of Strangers: The Tip and the Minimum Wage in France, Germany, and the United States
Authors: Finkin Matthew W.
Published: April 2022

A large number of employees work for tips; but the tip is an ambiguous institution—in economics, ethics, social practice, and law. This article explores those ambiguities in three countries—France, Germany, and the United States. In all three serious efforts were mounted to suppress the tip. In all three those efforts failed. And all three eventually legislated a minimum wage. But the status of the customer’s tip as the employer’s wage varies in each. This essay explores how that has come about and why it is so.
Precariousness of Trainees Working in the Framework of a Traineeship Agreement
Authors: Rosin Annika
Published: April 2022

The initial aim of traineeships (or internships) is to ease the transition of young people from school to work by providing them with hands-on work experience. Although traineeships are intended to be educational experiences, employers have started to use trainees as a form of cheap or unpaid labour. Instead of including trainees within the scope of labour laws, they are regarded as non-employees, and traineeships are regulated by traineeship agreements. However, it is not clear whether the rights of trainees working in the framework of a traineeship agreement are sufficiently protected to exclude them from the scope of labour law and prevent their precariousness in the labour market. The aim of this article is to address this question. Taking European Union (EU) law (especially the Quality Framework for Traineeships) as a starting point and then considering the laws of Estonia, Finland, and France, it is argued that at EU level, as well as in Estonia and Finland, trainees working in the framework of a traineeship agreement are not sufficiently protected to prevent their precariousness in the labour market. Trainees working in the framework of a traineeship agreement are exposed to precariousness due to the special features of the agreement as well as their limited labour rights. However, the example of France shows that with more protective regulation of traineeships, the precariousness of trainees can be prevented even without including them within the scope of labour law. It is proposed that at EU level and/or in the other Member States (MS) under examination, more protective regulation of traineeships should be adopted in order to prevent the precariousness of trainees or, alternatively, their inclusion in the scope of labour law should be considered.