bluuebunny/crossref_metadata_2025 huggingface dataset:
Fearing Minefields but Finding Goldfields: Teaching International and Comparative Workplace Law in China or Anywhere Else
Authors: Bisom–Rapp Susan
Published: April 2022

This essay explores the goals, challenges and outcomes associated with a course titled The Global Workplace, which the author taught in May–June 2007 as part of Thomas Jefferson School of Law’s inaugural Study Abroad in China Program. Although she had previously taught a similar course, this was her first experience with a cross–cultural, cross–national classroom. The essay reviews the goals the author had for the course, aspirations that did not differ in content from what she ordinarily hopes to achieve when teaching the course: (1) introducing students to international workplace law principles and international organizations, such as the International Labour Organization (ILO); (2) comparing several national systems so that students achieve insight into how common workplace problems are addressed differently in different countries; and (3) creating creative, open–minded future transnational lawyers through respectful discussion of policy and the tools available to facilitate transnational legal practice. Next, she describes three challenges attendant to teaching international and comparative workplace law in a foreign country. These challenges were: (1) language–related, because the Chinese students were not used to speaking and reading English on a regular basis; (2) pedagogical, in that the Chinese method of law instruction is typically lecture–based rather than interactive and Socratic; and (3) political, because some of the issues in the course implicate Chinese and American foreign policy and workplace conditions. Finally, the essay reviews the outcomes achieved during the author’s three weeks in China. By the end of the course, the author felt she had: (1) piqued the students’ interest and increased their knowledge in the course subject matter; (2) facilitated cross–cultural appreciation and the development of friendships between the Chinese and American students; and (3) achieved a depth and balance in her teaching that had perhaps been more difficult to achieve when teaching on American soil.
Workplace Songs: Developing a Framework for Research and Teaching
Authors: Gely Rafael
Published: April 2022

This essay provides some preliminary thoughts about a topic which has remained largely unexplored in the field of domestic and comparative industrial relations: the role of workplace songs in the employeremployee relationship. While a substantial literature exists with regard to the role that music plays in other areas of our life, little research has been done regarding the role that music plays in the workplace. The essay discusses the extant literature on workplace songs and provides some ideas for future research, as well as some thought about ways to incorporate workplace songs as a topic of discussion in industrial relations and related courses.
The Political Economy of Two-tier Reforms of Employment Protection in Europe
Authors: Ochel Wolfgang
Published: April 2022

Reforms of employment protection in Europe have eased the recourse to temporary forms of employment while not reducing the strictness of employment protection of permanent jobs (with the exception of Spain). Since 1990, such two-tier reforms have been implemented in Belgium, Denmark, Germany, Greece, Italy, the Netherlands and Sweden. The paper seeks to show why two-tier reforms of employment protection have taken place in some countries and have failed in other cases. This is done by taking a closer look at the history of national reform processes. In addition the paper seeks to determine whether two-tier reforms have subsequently led to employment protection reforms for permanent jobs.
The European Directive on Collective Dismissals and its Implementation Deficits Six ECJ Judgments as a Potential Incentive for Amending the Directive
Authors: Heinsius Jan
Published: April 2022

Over the last few years the Court of Justice of the EC – after a period of ‘silence’ – ruled in six cases about implementation of the 1998 Council Directive on collective dismissals in Italy, Portugal, Germany, Greece and France. Although the lessons that can be learned from the Decisions can be of importance for other ‘founding’ Member States that might have failed to implement the Directive correctly and/or for potential future Member States in implementing it correctly, they could also be useful for the EU itself. In a period in which the Commission succeeded in improving the Directive on European Works Councils, the judgments could be seen as an incentive for amending the Directive on collective dismissals. After a short description of the Directive, the six European Court of Justice (ECJ) judgments will be analyzed and commented on in view of their significance for such an amendment. Some suggestions relating to potential amendments will be outlined in the conclusions.
Business Regulation and Workers’ Compensation: A National Framework for Workers’ Compensation in Australia?
Authors: Guthrie Robert , Purse Kevin
Published: April 2022

Labour law in Australia is undergoing an unprecedented transformation. Fuelled by demands from big business and a dramatically changing constitutional landscape, the locus of regulation is shifting from the states and territories to the federal government. The most conspicuous illustration to date has been in the mainstream industrial relations arena as epitomized by the Howard Conservative Coalition Government’s Work Choices legislation. More recently, the Rudd Labour Government has championed a national approach to occupational health and safety law based on its ‘cooperative federalism’ agenda. Though less pronounced, workers’ compensation for injury at work has also been the subject of growing business demands for greater national regulation. In examining this issue, this paper will first of all outline previous attempts to develop a national workers’ compensation framework before turning to a consideration of more recent policy and legal developments, which have contributed to the emerging regulatory realignment of workers’ compensation laws and policy. The paper will also identify the major constraints on the drive for a national regulatory framework.
Whats the Point of Industrial Relations?
Authors: Moore Sian , McKay Sonia , Hyman Richard , Clarke Linda , Donnelly Eddy , Kelly John
Published: April 2022

What is the point of industrial relations? Research in the field has existed in Britain for well over a century, and university teaching in the subject dates back to the 1930s. Yet, in recent years, its relevance has been increasingly questioned by policymakers, with moves towards a form of 'disciplinary cleansing'. In this article, we demonstrate why the critical, cross-disciplinary, multilevel analysis that is of central importance to the industrial relations tradition remains both intellectually and ethically essential.
Flexicurity Meets State Traditions
Authors: Meardi Guglielmo
Published: April 2022

This article presents a theoretical and empirical discussion of the effects of the Europeanization of employment policies, arguing that the interaction with state traditions in industrial relations is a complex one, which may mediate or even distort European Union (EU) policies. State traditions do not imply strong path dependence nor coherence and immutability of national 'models', as theorized by dominant institutionalist approaches, but, as described by Crouch in 1993, influence the interactions between actors, who then mediate internationalization pressures. The European Employment Strategy (EES) confirms this. A quantitative analysis of employment policy indicators does not reveal significant distinctive convergence effects, and a qualitative analysis of the EU countries that have implemented the most far-reaching labour market changes ( Germany, Italy, and the new Member States) confirms the precedence of national over European politics, which tend to be characterized by the use of rhetorical tools for national actors.
The Criminalization of Sexual Harassment in the Nigerian Workplace: Is it an Adequate Response?
Authors: Oyewunmi Adejoke Omolola
Published: April 2022

Against the background of the newly promulgated law criminalizing sexual harassment in Nigerian workplaces and educational institutions, this paper examines the various theories and dimensions of sexual harassment, carrying out a comparative examination of approaches in different common law jurisdictions, including the US, Canada, South Africa and Ghana, and making recommendations to bring the law on sexual harassment into touch with the realities of the Nigerian socio-cultural environment.
The Dialogue between Canada and the ILO on Freedom of Association: What Remains after Fraser?
Authors: Choko Maude
Published: April 2022

The Canadian Charter of Rights and Freedoms was adopted in 1982, providing protection for freedom of association in Canada. However, in spite of Canada's membership of the International Labour Organization (ILO), the early interpretations of the Charter by the Supreme Court of Canada (SCC) resulted in a failure to comply with its international obligations on freedom of association, since the right to strike and to collective bargaining were excluded from the protection of the Charter. After a period of two decades during which the initial interpretation was applied, the issue of the scope of protection granted to freedom of association by the Canadian Charter arose once again. This resulted in important case law rulings upholding constitutional protection of the 'right to the process to collective bargaining' with an impact on the dialogue on freedom of association between Canada and the ILO. The present paper examines the most recent decision of the SCC on this issue, Fraser, in connection with the dialogue between Canada and the ILO. This decision limits the constitutional protection granted to the right to the process to collective bargaining. More precisely, the paper evaluates the impact of Fraser on the dialogue and on future compliance by Canada with its international obligations relating to freedom of association.
Revisiting Agency Work in Namibia and South Africa: Any Lessons from the Decent Work Agenda and the Flexicurity Approach?
Authors: van Eck Stefan
Published: April 2022

Namibia has recently introduced policies regarding the regulation of agency work, and South Africa is in the process of doing the same. The promotion of the decent work agenda by the International Labour Organization (ILO) and the implementation of flexicurity policies by the European Union (EU) have been followed by the adoption of instruments giving recognition to agency work. This contribution revisits the approach to the regulation of agency work in Namibia and South Africa. It considers the question of whether these two cases can cast light on the changing role of labour law regulation as developments unfold on the international front.
Designing Collective Bargaining Frameworks for Self-Employed Workers: Lessons from Australia and Canada
Authors: McCrystal Shae
Published: April 2022

The capacity for workers to combine in order to further their economic and social interests is a fundamental right enshrined in the Conventions of the International Labour Organization. Despite this, access to lawful collective bargaining may be limited in national jurisdictions to a more restricted class of workers, namely 'employees'. In common law countries, self-employed workers (or independent contractors) are almost always excluded. The distinctions drawn in national collective bargaining schemes between who is covered and who is not are a product of twentieth-century forms of work organization which facilitated a clear delineation between 'employees' labouring for the benefit of their employer, and self-employed 'entrepreneurs' in business for themselves. However, the economic structures and forms of work organization underpinning that distinction have broken down. Workers in need of the protection and benefits collective bargaining offers may be excluded because their contractual arrangements do not fit the twentieth-century model of employment on which access to collective bargaining is commonly based. Exploring how the boundaries of labour law regulation should be redrawn for the new globalized, outsourced and restructured world of work is a major challenge confronting the labour law discipline. This article considers how we might redefine those boundaries in the context of collective bargaining to accommodate the needs of self-employed workers. Starting from the assumption that such workers should be provided with access to lawful collective bargaining, the article discusses the issues that arise in designing such a framework. The discussion will draw upon various schemes in Australia and Canada that have been designed for particular classes of precarious self-employed workers, considering the lessons that can be learned from those experiences.
Has Polycentric Strike Law Arrived in the UK? After Laval, After Viking, After Demir?
Authors: Kilpatrick Claire
Published: April 2022

This analysis argues that over the last decade strike law has become polycentric in Europe. Having explained why, it examines the impact of this new polycentricity on the previously nationally determined UK strike law settlement. It then explores the fragile bases of polycentric strike law in the UK.
On the Uses and Misuses of Worker Participation: Different Forms for Different Aims of Employee Involvement
Authors: Biasi Marco
Published: April 2022

Considering the wide spectrum of meanings of the expression 'worker participation', the article focuses on the differences between some of the most significant experiences of employee involvement, starting with the 'benchmark model', the German co-determination system. The analysis of the German system, its origins, characteristics and rationale, leads on to a critical evaluation of the progressive movements from this 'strong' and mandatory form of worker participation: from the 'weak(er)' and negotiable European model to the simultaneous use of managerial and financial participation in a recent Italian Act, up to employee participation in the firm's profits (and risks), associated with a loss of rights, in the recent 'shares for rights' scheme in the UK.A comparative overview of these schemes weads to a final reflection on the difference between 'uses' and 'misuses' of worker participation, based on the ideals underlying the various forms of employee involvement.
The Role of Mandatory ADR and Agency Engagement in Resolving Employment Discrimination Complaints: An Australian Perspective
Authors: MacDermott Therese
Published: April 2022

Many jurisdictions struggle with the challenge of how to make their processes accessible, fair, and cost-effective when dealing with employment discrimination complaints. This article examines this problem from an Australian perspective, in the light of comparable arrangements and recent legislative initiatives in the United Kingdom. Much of the emphasis has been on the implementation of mandatory Alternative Dispute Resolution (ADR) processes. While critiquing the 'gatekeeping' role of ADR processes in this context, this article contends that the engagement by human rights and other agencies, and the advice and assistance made available to individuals, is of equal importance in facilitating the resolution of employment discrimination complaints.
Bhasin v. Hrynew: A New Era for Good Faith in Canadian Employment Law, or Just Tinkering at the Margins?
Authors: Mummé Claire
Published: April 2022

In Commonwealth Bank of Australia v. Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority. Issued two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court crafted a new substantive doctrine of honest contractual performance, based on a newly-recognized central organizing principle of good faith in contract law. A few months later the Court applied the organizing principle of good faith to circumscribe the exercise of an employer’s discretion in Potter v. New Brunswick Legal Aid Services Commission. This article offers an assessment of the potential impact of Bhasin and Potter on the future direction of Canadian employment law.
Changes to Economic and Monetary Union and Their Effects on Social Policy
Authors: Hinarejos Parga Alicia
Published: April 2022

This article argues that the way fiscal and economic integration is pursued within EU Economic and Monetary Union (EMU) has changed since the Euro area crisis, resulting in a higher degree of interference with national social policy choices and a resurgence of the so-called social deficit. In view of the situation, attempts have been made to take social policy into account within the new EMU framework for economic and fiscal monitoring. The article argues that while these reforms constitute an improvement, they are not enough to address the post-crisis social deficit. This question does not have an easy solution, and ensuring an optimal fit between economic and fiscal integration and social policy is one of the greatest challenges facing the EU. Ensuring an optimal fit is necessary to make EMU sustainable, as well as to ensure legitimacy and support for the European project. The final section of the article provides concluding reflections and an overview of the proposals currently on the table.
Just-in-Time Labour: The Case of Networks Providing Home Support Services in Quebec
Authors: Boivin Louise
Published: April 2022

This article aims to analyse how the obligation to be available to work when requested by one’s employer manifests itself in the context of network organizations and under a legal regulation of working hours which was forged on the basis of the industrial production model. We conducted two case studies examining the situation of workers in the private externalized segments of home support services networks in Quebec, a Canadian province. We will demonstrate that for these atypical workers, mostly women, the obligation to be available to work without any accompanying compensation in wages is implicit and manifests itself in two ways: through time that is considered to be personal but which is not because it is squeezed into the gaps in fragmented, variable and unpredictable working schedules and through the exclusion, from paid work time, of time spent carrying out work-related tasks. The impact of this obligation is significant in terms of wages and precariousness. Its manifestations derive from both the network-based organization of work – which allows for the imposition of a ‘justin- time’ model of labour management and a reinforcement of the sexual division of labour – and the inadequacy of the legal regulation of working hours with regard to this organizational model.
Active Aging through Employment: A Critical Feminist Perspective on Polish Policy
Authors: Zbyszewska Ania
Published: April 2022

Age has become a crucial factor in labour market regulation measures adopted in Poland in recent years. Inspired by the Europe 2020 strategy of ‘smart, sustainable and inclusive growth’, Poland’s own long-term development plans, especially those adopted by the former Civic Platform-led administration, place a significant emphasis on extended working lives as essential to economic sustainability. Due to low employment rates among Poland’s senior age cohorts, and the shortfall between the actual and statutory age of retirement, many of the country’s Active Aging measures have focused primarily on employment activation of workers over the age 50. The supply-side activation techniques and demand-side incentives, combined with pension system reforms, have been the key measures designed to encourage longer working lives. However, there is a need to consider the extent to which these measures are achievable and adequate. From a feminist, socio-legal perspective, this article critically evaluates Poland’s Active Aging policy and reforms by locating them at the intersection of the transformation and restructuring of the Polish welfare state and the re-regulation of the country’s labour market according to neoliberal values. Two key points of interest, or sources of tension, are identified: the extent to which efforts to bolster older people’s employment participation take adequate account of labour market conditions, and the roles that older people play in the provision of care and other activities involved in the maintenance of living standards. As the article shows, the potentially negative consequences of this policy trajectory for the well-being of older people in and out of the labour market, and for the organization of care and the broader processes of social reproduction, though potentially exacerbated by current policies, have tended to be downplayed in policy and legal reform.
The Regulatory Challenges of Uberization in China: Classifying Ride-Hailing Drivers
Authors: Zou Mimi
Published: April 2022

There has been nascent litigation around the world on the employment classification of workers in the ‘sharing economy’, ‘gig economy’ or ‘on demand economy’. New business models and forms of work organization arising from rapid advancements in digital technologies (or ‘disruptive innovation’ as some have described the phenomenon) have sparked considerable debate on a wide array of regulatory issues, including the role of labour law protections for the emergent ‘digital workforce’. This debate is currently taking place in the People’s Republic of China. This article analyses how Chinese courts and lawmakers have addressed issues that are directly or indirectly relevant to determining the status of drivers in the ride-hailing sector. Despite the presence of criteria for identifying a ‘labour relationship’ under Chinese labour law, the courts have not adopted a uniform approach across different types of claims involving these drivers. A new government regulation on the ride-hailing sector, which took effect in November 2016, has not resolved this issue as it permits ride-hailing platform companies to enter into labour contracts and other forms of agreements with drivers based on the particularities of their work arrangements. In considering these recent cases and regulatory developments, the article concludes that a purposive approach to the existing criteria in Chinese labour law for ascertaining the status of workers in the sharing economy is useful for addressing the basic question of whether they should be protected, rather than creating ‘new’ categories of employment classification.
The Irresistible Rise of Occupational Welfare in Italy: From Social Innovation to Regulatory Challenges
Authors: Senatori Iacopo
Published: April 2022

This article examines the legislative measures and collective bargaining provisions responding to the need for employee well-being and protection from social risks, that are increasingly important in Italy as part of a broader trend in the comparative scenario. After considering the concept of ‘occupational’ or ‘company-level welfare’ to encompass such provisions and practices within a single analytical framework, the focus shifts to the legal issues arising from the configuration of the interests involved and the balance between them. It is argued that a specific regulatory approach should be used to address such problems, and that reflexive labour law theory could provide an appropriate framework in this regard. Finally, some points for further consideration are proposed in relation to the linkages between the solutions put forward on this particular issue and the theoretical debates on the foundations of labour law.
The Minimum Wage as a Matter of Tangible Human Dignity: A Comparative Constitutional Law Analysis
Authors: Choko Maude , Martin Isabelle
Published: April 2022

The right to human dignity has been applied to numerous employment issues: loss of reputation, privacy, sexual and psychological harassment.Human dignity has less often been invoked in litigation involving tangible working conditions such as the minimum wage. These questions have traditionally been dealt with by employment legislation rather than human rights law. This article argues that minimum wage issues are also a matter of human dignity. In this respect, the adequacy and sufficiency of minimum wage regulations could be assessed in the light of the right to human dignity. In particular, we will examine minimum wage regulations in Quebec (Canada) with regard to the right to human dignity as laid down in the Quebec Charter of Human Rights and Freedoms.

In order to substantiate the relationship between the minimum wage and human dignity, we intend to make use of comparative constitutional law. We will draw on the interpretation and application of human dignity developed in international law as well as in four jurisdictions: Quebec, Canada, Israel and Germany. Although Quebec and Canadian case law has applied human dignity to work issues, they have not developed its application to tangible working conditions. By comparison, international law, together with Israeli and German law, have developed the tangible dimension of dignity more extensively. These sources of law may help address the lack of attention on the part of the Quebec courts to the tangible dimension of dignity at work. We then turn to the Quebec minimum wage regulations to evaluate their sufficiency and adequacy in the light of the right to human dignity.
A Comparison of Four Experiments in Extending Labour Regulation to Non-Standard and Informal Workers
Authors: Marshall Shelley
Published: April 2022

Workers most exposed to economic risk around the world are commonly not covered by labour law either because laws were designed with people with a standard, continuous employer in mind or because of poor enforcement. According to the International Labour Organization’s estimates, informal work, as a percentage of non-agricultural employment, continues to account for over 50% of all employment in half of the countries with comparable data across the globe. In onethird of countries, it involves over 65% of workers.1 There are exciting local and national experiments in new forms of labour regulation occurring in various countries that aim to extend labour regulation to non-standard workers, ensuring that they receive living minimum wages. This article compares four experiments in regulating work, including innovations in the regulation of work for head load (Mathadi) workers in India, immigrant industrial clothing outworkers in Australia, garment workers in Cambodia, and workers in Bulgaria who rely on a range of homebased activities to survive. The schemes have enjoyed varying success, providing lessons about what does and does not work in different contexts.
A Pluralistic Approach to Organizing Migrant Domestic Workers: The Case of the Zimbabwe- South Africa Global Care Chain
Authors: Bamu Pamhidzai
Published: April 2022

Migrant domestic workers are among some of the most vulnerable workers across the world, because of their position as invisible workers and their precarious status as migrants. This article situates migrant domestic workers in the Zimbabwe-South Africa corridor within the global care chain literature. It recognizes the centrality of worker organization to any efforts to address their situation. Drawing on the experience of worker organizations in South Africa, it argues for a pluralistic approach to worker organizing. This calls for the recognition of plural actors, policy domains, normative regimes, and narratives that shape the global care chain, and the leveraging of worker’s plural identities.
Reconstructing Labour Law Actors beyond Employment
Authors: Yun Aelim
Published: April 2022

This article argues that the nature of precarious work can be grasped as the disintegration of the employment relationship which was a historical compromise concerning the distribution of cost and risks between capital and labour, in particular, along Fordist corporate boundaries, while analysing how the formal-and-informal division of labour has changed, corresponding to the change of power relations between labour and capital, focusing on Korean cases.

Many legal systems fail to identify who should take responsibility for workers’ rights, by viewing individual corporate entities separately. However, labour law actors – the ‘worker’ and the ‘employer’- should be identified not in a single workplace but with reference to the whole value chain and labour market. In conclusion, it is argued that it is essential to enlarge collective labour rights, and in particular, to secure freedom of association for precarious workers beyondemployment boundaries.
The Crisis of the Collective Bargaining System in Poland
Authors: Pisarczyk Lukasz
Published: April 2022

The article analyses the reasons for the collapse of collective bargaining in Poland, while formulating proposals to overcome the current difficulties. The Polish labour market with almost 17 million workers is among the largest in Europe. However, only around 15% of workers are covered by the provisions of collective agreements. The most striking feature of the system is the lack of multi-employer collective agreements including sectoral agreements. The crisis has been caused by various legal, structural, social, economic and political factors. The most important problems include the difficulties affecting the position and functioning of the social partners. Paradoxically, there are also some legal solutions which deepen the crisis of collective bargaining. Polish law regulates this phenomenon in a complex and unclear way, leaving limited room for the social partners, and making collective agreements unattractive for employers. Moreover, the strict and rigid requirements concerning trade unions at company level limit negotiations in small and medium-sized enterprises. Legislative intervention seems legally justified to improve the situation. First, it is important to eliminate the regulations that constitute an obstacle to the development of collective bargaining. Second, respecting the social partners’ autonomy, the law should encourage and support negotiations between employers and employee representatives.
Sex Work Regulation, Anti-trafficking Policy, and Their Effects on the Labour Rights of Sex Workers in Germany
Authors: Thiemann Inga K.
Published: April 2022

This article provides an analysis of regulatory approaches to sex work, the status of sex workers’ labour rights, and the conflation of sex work and human trafficking, with reference to the example of Germany. It assesses the strengths and weaknesses of Germany’s approach to the regulation of prostitution and the ways it has been influenced by international debates challenging the status of sex work as work, as well as concerns about human trafficking. It analyses the Prostitution Act 2002 (ProstG), and the Prostitute Protection Act 2017 (ProstSchG), and their effects on the rights and working conditions of sex workers, as well as their aim of improving the safety of vulnerable sex workers and reducing the level of human trafficking and exploitation in the German sex industry. In particular, the article considers the impact of this legislation on those working in the sex industry, especially migrant women and those at risk of exploitation. Through its analysis of the existing approach to sex work in Germany, the direction of reform and the absence of a labour-rights approach to the regulation of sex work and the prevention of trafficking, the article highlights the fact that even a country that is -in principle - willing to accept sex work as work, has failed to grant labour rights to sex workers. The article argues that the Prostitute Protection Act has in some ways increased the vulnerability of sex workers rather than promoting their safety. In addition, it is argued that legislators should consider labour protection and labour rights as an alternative means of protecting sex workers, rather than (re)criminalizing aspects of sex work in the name of ‘protecting’ women by means of prohibition or control. Adopting a labour-rights approach rather than paternalistic approach would have the potential to bring about far-reaching reform of the relevant legislation both in Germany and internationally.

Sex Work, Human Trafficking, Labour Rights, Criminalization, Prostitution, Sex Work as Work
‘Masters and Servers’: Collective Labour Rights and Private Government in the Contemporary World of Work
Authors: De Stefano Valerio
Published: April 2022

This article explores the issues of subordination and authority in the contemporary world of work as they are exacerbated by new forms of work-surveillance that track emotions and mental states of workers by means of artificial intelligence, predictive algorithms and big data. It discusses subordination in contemporary work arrangements, highlighting how new technologies and business practices expand hierarchy and forms of private government beyond the scope of the employment relationship. It explores some of the technologies and practices that magnify and expand managerial powers to unprecedented levels, by tracking and strictly monitoring workers’ emotional and mental states. It also highlights how collective labour rights represent the best counterbalance to restrain these practices and curb modern forms of private government in the workplace. It concludes by discussing how the distinction between the traditional functions of collective rights, the ‘civil liberty’ and the ‘industrial’ function is increasingly blurred, arguing that an expansion of the personal scope of collective rights is crucial in this regard.

Workplace Surveillance, Artificial Intelligence, Predictive Algorithms, Big Data, Platform Work, Surveillance Capitalism, Subordination, Contract of Employment, Collective Labour Rights
On Labour Representativeness: The Hidden Components of the Human Right to Freely Associate in Trade Unions
Authors: Mundlak Guy
Published: April 2022

The freedom of association in trade unions is accorded a special status in the international covenants on human rights, in ILO Conventions and in national constitutions. Moreover, trade unions are usually the sole subjects of special privileges for negotiating collective agreements, consultation and permissible industrial action. Human rights and constitutional litigation usually focus on removing obstacles from individuals’ choice to associate and on the scope of the positive right to freely associate. However, there are other fundamental aspects of the right that are more covert, which are designated as its ‘hidden components’. These include the rules regarding representative status, which crudely prescribe the relationship between trade unions and their membership. Despite the prevalence of requirements for representativeness in all national industrial relations systems, the variations are immense. This article probes into the nature of representativeness, displaying its significant effect on the ability of workers to negotiate, on the capacity of trade unions to achieve collective agreements, and on the distributive effects of such agreements. The article concludes that the constitutional dimension of representativeness must be considered, demonstrating rare instances of robust constitutional challenges and directing attention to the seemingly more mundane forms of response, legal or extra-legal, that actually shape the course of their incremental legal development.

Labour Law, Trade Unions, Representation, ILO, Comparative
A Behavioural Ethics Approach to Employment Law and Workplace Norms
Authors: Nadiv Neta , Feldman Yuval
Published: April 2022

The field of behavioural ethics seeks to clarify how people behave when confronted with ethical dilemmas. It has identified and analysed numerous mechanisms by which people may engage in unethical and illegal behaviour without fully recognizing its implications. In the field of employment law, which focuses on the interaction between employers and employees, the subtle mechanisms which may underlie people’s decisions to behave unethically are especially relevant, but have not been the subject of significant study. The question examined here is how applying behavioural ethics to employment law can cast light on some current employment law issues, including compliance. To this end, the article identifies four contexts in which the law can be improved: ensuring protection for employees when they are under pressure to act in a manner contrary to their personal ethical standards; clarifying the measures to prevent workplace bullying; creating clear rules in the case of workplace changes such as working from home, which gives rise to expenses for the employee; and ensuring protection against small daily violations which are sometimes considered too negligible for enforcement purposes. The article argues that the development of employment law can benefit from taking behavioural ethics into account.

Behavioural Ethics, Employment Law, Unnoticed Harms
Labour Inspections in Post-Soviet Countries: Reform or Collapse?
Authors: Lyutov Nikita , Voitkovska Ilona
Published: April 2022

This article examines the policy of limiting the powers and resources assigned to the labour inspectorate in ten post-USSR republics: Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine, and Uzbekistan. This policy is pursued in all ten countries in the name of boosting economic efficiency and reducing regulatory constraints on business. A significant number of limitations on labour inspections is identified, some of them in direct contradiction with the requirements of the priority International Labour Organisation (ILO) Conventions on Labour Inspections, No. 81 and 129. Some of the restrictions do not directly contradict the requirements of these Conventions, but their inadequate application in combination with certain restrictive measures leads to significant non-compliance with international labour standards. It is argued that international institutions such as the World Bank and the International Finance Corporation (IFC) have advocated this decline in inspections. The most significant restrictions on labour inspections in the region include limiting inspections to occupational safety and health matters; the legal requirement for labour inspectors to give prior warning to employers about the inspection, or to obtain approval for the inspection from other state authorities; and the requirement for a complaint to be made by workers as a necessary precondition for carrying out an inspection.

Labour Legislation, International Labour Law, Labour Inspection, Law Enforcement, Post-Soviet Countries, Compliance, Occupational Safety and Health
Effects of Dumping vs. Anti-dumping Measures: The US Trade Remedy Laws Applied to Wheat Imports from Canada
Authors: Koo Won W.
Published: April 2022

Empirical estimation of the effects of dumping (and/or subsidization) usually has been assessed by estimating it after the imposition of an anti-dumping duty (and/or countervailing duty) order. This article examines, theoretically and empirically, the difference between the economic effects of dumping and anti-dumping measures, using US trade remedy law against hard red spring (HRS) wheat imports from Canada. An econometric model is developed and used to estimate the effects of the decline in HRS wheat imports from Canada after the imposition of anti-dumping/countervailing duties by US authorities. This study found that the anti-dumping/countervailing duties on Canadian HRS wheat imports resulted in an increase in HRS wheat price by $0.14/bushel. Although, in theory, the economic effects of dumping are seemingly identical to those of an anti-dumping measure, they are not equal in practice. In fact, the volume of dumped imports entering the US market on the strength of dumping and the volume of dumped imports driven from the US market after the imposition of an anti-dumping measure are not identical. Implementation of the trade remedy laws is certainly not designed to equate, scientifically, the two effects.
Cessation and Reparation in the GATT/WTO Legal System: A View from the Law of State Responsibility
Authors: Park Nohyoung , Shadikhodjaev Sherzod
Published: April 2022

The contents and the status of cessation is considerably the same in the law of State responsibility and the GATT/WTO. However, the legitimacy of reparation, especially restitution and compensation, in the GATT/WTO is controversial. As to restitution, the arguments that retrospective remedies are contrary to the GATT/WTO practice are questionable. Compensation under the GATT/WTO instruments is not a form of reparation, but monetary compensation offered in US—Section 110(5) Copyright Act has some elements of compensation under the law of State responsibility. Finally, there seem to be two possibilities under the existing WTO disciplines when reparation could be provided on a case-by-case basis.
The Use and Misuse of Trade Negotiation Simulations
Authors: Scott James
Published: April 2022

The Doha Round of trade talks was suspended following the inability of the key players to find a mutually satisfactory agreement. One contributory factor to the problems the negotiations have faced has been the significant improvement in developing countries’ awareness of the costs and benefits of the offers being made, as a result of a huge expansion in the availability of economic analyses being performed by a diverse array of agencies, much of it focused specifically on the effects on developing countries. While in the Uruguay Round and before many developing countries had little understanding of what the various agreements entailed, this is no longer the case. As a consequence, the EU and the United States have been unable to force through a bilaterally agreed deal, as was the usual practice in the General Agreement on Tariffs and Trade (GATT) rounds.
Private Appeals to WTO Law: An Update
Authors: Bronckers Marco
Published: April 2022

At first glance there seem to be few opportunities for private parties to raise objections to government regulation based on World Trade Organization (WTO) law. The WTO still appears to be largely a forum for governments to negotiate or litigate. In fact, there are various ways in which private parties can invite governments to engage with their WTO law obligations, and these are surveyed in this article. First, I illustrate the immediate obstacles facing private parties that want to challenge a government measure on the basis of WTO law. I then take a closer look and discuss different means for private parties to appeal to WTO law, today or perhaps in the not too distant future. There have been several recent developments that suggest that such private complaints should be taken more seriously. This discussion covers the position of private parties before the WTO, before their own government and before domestic courts. To the extent I refer to experiences drawn from a domestic context I will mostly refer to European law, though I have occasion also to mention precedents from US law and Chinese law.
Industrial Tariff Reduction: Why the Best Might Still Turn Out to Be the Worst?
Authors: Ranjan Prabhash
Published: April 2022

The issue of tariff reduction modality in negotiations on non–agricultural market access (NAMA) in the World Trade Organization (WTO) assumes importance in light of the role that industrial tariffs play in the industrial policy of many developing countries. This article analyzes the tariff reduction modality in NAMA in light of the basic principle of less than full reciprocity in reduction commitments that has been recognized as an integral component of NAMA negotiations in the Doha ministerial declaration, the General Council decision of 1 August 2004 and the Hong Kong Declaration. The article interprets less than full reciprocity in the NAMA negotiations and discusses the different tariff reduction formulas that could be used to fulfil the mandate of less than full reciprocity. It also provides a critique of the proposed tariff reduction modality given in the NAMA document issued on 8 February 2008. The article shows that the proposed tariff reduction modality with the proposed set of coefficients for developed and developing countries will fail in honouring the less than full reciprocity principle in reduction commitments.
Using Preferences to Promote LDC Exports: A Canadian Success Story?
Authors: Helble Matthias , Anson José , Bacchetta Marc
Published: April 2022

The contribution of non–reciprocal preference schemes to least–developed countries (LDC) export performance is a topic of active debate. This paper examines the impact of a broad–based reform of the Canadian General System of Preferences (GSP) for LDC scheme on the export performance of LDCs in the textiles and clothing sector. The results indicate that a more flexible GSP scheme not only boosted the export volume, but also increased the number of product categories that were exported. The paper thus provides further confirmation that appropriately designed non–reciprocal preference schemes may help promote the export performance of LDCs.
Interpreting the Chapeau of GATT Article XX in Light of the ‘New’ Approach in Brazil-Tyres
Authors: Davies Arwel
Published: April 2022

Non-discrimination obligations in the World Trade Organization (WTO) Agreements continue to be intensely debated in terms of how to characterize what is prohibited and what legal tests and methodologies should be applied. This article engages with various aspects of this debate with reference to the different conceptions of the chapeau of General Agreement on Tariffs and Trade (GATT) Article XX evident in the panel and Appellate Body reports in Brazil-Tyres.
Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law
Authors: Voon Tania , Mitchell Andrew D.
Published: April 2022

By mandating patent protection for pharmaceutical products, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) creates difficulties for developing countries seeking to import medicines to deal with serious public health concerns. In 2001, WTO Members began working towards a solution to this problem. Their work led to a temporary waiver of certain TRIPS obligations and a proposal for a formal amendment of the TRIPS Agreement. However, the waiver remains underutilized and the amendment still lacks the necessary support of WTO Members for it to come into effect, suggesting that Members need to re-evaluate their commitment to affordable medicines while testing the workability of the waiver before making it permanent. Moreover, the potential of bilateral approaches to the problem of access to medicines for developing countries in the context of international trade is not being realized. On the contrary, preferential trade agreements concluded with the United States (US), in particular, are extending patent protection and diminishing flexibilities available under the TRIPS Agreement to address public health concerns. A pattern of contradictions exists between the WTO rhetoric on the one hand and Members’ domestic frameworks, bilateral agreements, and unilateral actions on the other. When it comes to attaining a coherent approach under international law towards reconciling patents and public health, the outlook is bleak.
EU Trade Defence Actions against China and Their Impacts: The Cases of Textiles and Footwear
Authors: Curran Louise
Published: April 2022

This paper seeks to deepen understanding of EU trade defence measures and their impacts by looking at two particular cases of their use against low-cost imports of Chinese textiles and footwear. The paper highlights, on the one hand, the difficulty experienced by the EU Member States in reaching agreement in both of these cases due to the very different national economic interests involved and, on the other, the impacts of these measures on the market. Both the textiles restrictions and the footwear antidumping actions were followed by reductions in the growth rates of China’s exports to the EU. However, they were also followed by an increase in the exports of other low-cost developing country exporters. The key winners from these actions in trade terms seem to be other developing countries rather than EU domestic industry.