Pub Date : 2024-01-31DOI: 10.1177/20319525241227838
Uglješa Grušić
This article is a revised version of a concept paper written for the European Commission on the private international law regulation of individual employment relationships within the EU. It aims to assess the regulation of such relationships from the perspective of European private international law and indicate potential avenues for reform.
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Pub Date : 2024-01-23DOI: 10.1177/20319525241227836
Aukje A. H. van Hoek
This contribution deals with both jurisdiction and applicable law with regard to cross-border collective actions in labour law. It demonstrates that the European conflicts rule embodied in Article 9 of the Rome II Regulation is open to diverging interpretations. This can, to a large extent, be explained by the very diverse legal characterisation of industrial action in the national systems of the EU Member States. The connecting factors used in the Rome II Regulation also create specific challenges when applied in the context of industrial action. As a result of these complications, Article 9 Rome II currently fails to fulfil its function of creating legal certainty around the legality and the legal consequences of industrial action with a cross-border element. A further clarification of the scope of Article 9 and the role played by the law of the country in which the industrial action is taken would help to reduce the current confusion and uncertainty. The uncertainty as to the applicable law is exacerbated by the rules on jurisdiction in the Brussels I bis Regulation which allow, to some extent, for forum shopping. Two provisions of the Brussels I bis Regulation might warrant revision to reduce their negative impact on the exercise of the right to industrial action: the rule on multiple defendants (Article 8(1)) and the rule granting jurisdiction to the place where the damage caused by the industrial action is sustained (Article 7(2)).
这篇论文涉及劳动法中跨境集体诉讼的管辖权和适用法律。它表明，《罗马第二规则》第 9 条所体现的欧洲冲突规则可以有不同的解释。这在很大程度上可以解释为欧盟成员国的国家体系对劳工行动的法律定性非常不同。罗马 II 条例》中使用的关联因素在适用于劳工行动时也带来了具体的挑战。由于这些复杂因素，《罗马 II》第 9 条目前未能履行其职能，即为具有跨境因素的劳工行动的合法性和法律后果创造法律确定性。进一步明确第 9 条的范围以及采取劳工行动的国家的法律所发挥的作用，将有助于减少目前的混乱和不确定性。布鲁塞尔条例 I 之二》中关于管辖权的规则在一定程度上允许择地诉讼，这加剧了适用法律的不确定性。布鲁塞尔条例 I 之二》中的两项规定可能值得修订，以减少其对行使劳工行动权的负面影响：关于多个被告的规则（第 8(1)条）和将管辖权授予劳工行动所造成损害的发生地的规则（第 7(2)条）。
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Pub Date : 2024-01-11DOI: 10.1177/20319525231221096
Federico Pisani, David Mangan
INAIL and INPS is a decision about social security and insurance contributions. The case was brought against Ryanair, alleging that contributions were owed to the relevant Italian authorities where the documentation (an E101 certificate, now an A1 form) had not been properly completed by the employing airline. Aircrew personnel were employed under Irish employment contracts, but resided in Italy. Other than 45 minutes per day in the crew room at the airport in Bergamo, these staff were on board an aircraft registered in Ireland.
{"title":"Flying around social security","authors":"Federico Pisani, David Mangan","doi":"10.1177/20319525231221096","DOIUrl":"https://doi.org/10.1177/20319525231221096","url":null,"abstract":"INAIL and INPS is a decision about social security and insurance contributions. The case was brought against Ryanair, alleging that contributions were owed to the relevant Italian authorities where the documentation (an E101 certificate, now an A1 form) had not been properly completed by the employing airline. Aircrew personnel were employed under Irish employment contracts, but resided in Italy. Other than 45 minutes per day in the crew room at the airport in Bergamo, these staff were on board an aircraft registered in Ireland.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2024-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139534059","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-09DOI: 10.1177/20319525231222161
Mathias Wouters
In 2022, the UN Committee on the Rights of Persons with Disabilities issued General Comment No. 8 on the right of persons with disabilities to work and employment. The general comment most notably recommends States parties to expeditiously phase out segregated employment, including sheltered workshops. After covering the contents of the general comment on this issue in Section I, this contribution argues that the Committee does not take into account that sheltered employment is a complex notion and that domestic sheltered employment systems can evolve. Since General Comment No. 8 outlaws segregated (sheltered) employment, the question becomes, can sheltered employment be legally desegregated, and hence does not have to be expeditiously phased out? Section III illustrates, based on examples from the Benelux countries, that domestic sheltered employment systems do not necessarily exhibit the distinguishing features of segregated employment, as described in General Comment No. 8. Section IV explains that this leaves the CRPD Committee with a decision to make. It could assert that sheltered employment is ipso facto segregated employment, which is to be phased out. It could also draw on its non-exhaustive list of the distinguishing features of segregated employment to incite States parties to at least desegregate sheltered employment legally if they decide not to phase it out entirely.
2022年，联合国残疾人权利委员会发布了关于残疾人工作和就业权利的第8号一般性意见。该一般性意见特别建议各缔约国尽快淘汰隔离就业，包括庇护工场。在第一部分介绍了有关这一问题的一般性意见的内容之后，本文认为委员会没有考虑到庇护性就业是一个复杂的概念，而且国内的庇护性就业制度也会不断演变。既然第 8 号一般性意见规定隔离（庇护）就业为非法，那么问题就来了，庇护就业能否在法律上取消隔离，从而不必被迅速淘汰？第 III 节根据比荷卢经济联盟国家的例子说明，国内的庇护性就业制度并不一定表现出第 8 号一般性意见所述的隔离就业的显著特点。第 IV 部分解释说，这使得《残疾人权利公约》委员会需要做出决定。委员会可以断言，庇护性就业是当然的隔离就业，应当逐步淘汰。委员会还可以利用其关于隔离就业显著特点的非详尽清单，鼓励缔约国在决定不完全淘汰庇护性就业的情况下，至少在法律上取消隔离。
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Pub Date : 2023-12-21DOI: 10.1177/20319525231222165
Niall O'Connor
Irish citizens living in the United Kingdom (UK) enjoy a privileged immigration status, which in turn facilitates access to a number of economic and social rights, perhaps most importantly a right to—and thereby rights in—work. European Union (EU) law played an important role in facilitating the latter, but with freedom of movement and the right to work of Irish citizens now dependent on the Common Travel Area (CTA) and associated legislative protections. This article argues that the CTA constitutes a workers’ rights ‘intervention’, which necessitates a clearer articulation of how this instrument fits within the wider context of post-Brexit UK employment law, including the rights deriving from the withdrawal arrangements governing the UK's departure from the EU. There are a number of asymmetries in the CTA that undermine its value as an employment rights conduit. Brexit, it is argued, has led to further fragmentation of the category of ‘Irish citizen’ in the UK, despite the purported recent recognition of such citizens as a distinct class within UK immigration law. More significantly, the CTA lacks normative purpose, and is a rather weak employment law instrument, in that it represents no more than a facilitation of national legislative intervention to ensure (roughly) equivalent treatment between British and Irish citizens in matters of employment (among other economic and social rights). The current CTA arrangements are thereby devoid of any underpinning (social) objectives or values and lack explicit recognition of their role as a facilitator of access to fundamental economic and social rights. Non-political, and rights-based conceptions of social citizenship are suggested as potential normative groundings for the CTA and derived (employment) rights in the absence of the protective framework offered by EU free movement and labour law.
{"title":"Quasi (-social) Citizenship, the Common Travel Area, and the Fragmented Protection of Employment Rights in the United Kingdom after Brexit","authors":"Niall O'Connor","doi":"10.1177/20319525231222165","DOIUrl":"https://doi.org/10.1177/20319525231222165","url":null,"abstract":"Irish citizens living in the United Kingdom (UK) enjoy a privileged immigration status, which in turn facilitates access to a number of economic and social rights, perhaps most importantly a right to—and thereby rights in—work. European Union (EU) law played an important role in facilitating the latter, but with freedom of movement and the right to work of Irish citizens now dependent on the Common Travel Area (CTA) and associated legislative protections. This article argues that the CTA constitutes a workers’ rights ‘intervention’, which necessitates a clearer articulation of how this instrument fits within the wider context of post-Brexit UK employment law, including the rights deriving from the withdrawal arrangements governing the UK's departure from the EU. There are a number of asymmetries in the CTA that undermine its value as an employment rights conduit. Brexit, it is argued, has led to further fragmentation of the category of ‘Irish citizen’ in the UK, despite the purported recent recognition of such citizens as a distinct class within UK immigration law. More significantly, the CTA lacks normative purpose, and is a rather weak employment law instrument, in that it represents no more than a facilitation of national legislative intervention to ensure (roughly) equivalent treatment between British and Irish citizens in matters of employment (among other economic and social rights). The current CTA arrangements are thereby devoid of any underpinning (social) objectives or values and lack explicit recognition of their role as a facilitator of access to fundamental economic and social rights. Non-political, and rights-based conceptions of social citizenship are suggested as potential normative groundings for the CTA and derived (employment) rights in the absence of the protective framework offered by EU free movement and labour law.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138950113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-19DOI: 10.1177/20319525231219665
Ankie Hartzén
This case note discusses Swedish Labour Court case No. 33 of 2023 (AD 2023:33). The case involved a fixed-term worker employed as a personal assistant under a specific form of fixed-term contract regulated by collective agreement. The trade union sought to have the employment contract converted into a contract of indefinite duration and the form of fixed-term employment used to be declared invalid. Furthermore, it requested that the court should seek a preliminary ruling on whether the specific situation and conditions of work in the case could be considered objective reasons in accordance with clause 5(1)(a) of the Fixed-Term Framework Agreement. The Swedish Labour Court decided that the Fixed-Term Work Directive was not applicable in the case and that there was no reason to ask for a preliminary ruling. This case note discusses the outcome of the case and the reasoning of the Swedish Labour Court of specific interest in relation to the Fixed-Term Work Directive.
{"title":"Ignoring Facts of a Case to Avoid a CJEU Ruling on a Form of Fixed-term Employment Regulated in a Swedish Collective Agreement?Case Note on Swedish Labour Court Case No. 33, 2023 (AD 2023:33)","authors":"Ankie Hartzén","doi":"10.1177/20319525231219665","DOIUrl":"https://doi.org/10.1177/20319525231219665","url":null,"abstract":"This case note discusses Swedish Labour Court case No. 33 of 2023 (AD 2023:33). The case involved a fixed-term worker employed as a personal assistant under a specific form of fixed-term contract regulated by collective agreement. The trade union sought to have the employment contract converted into a contract of indefinite duration and the form of fixed-term employment used to be declared invalid. Furthermore, it requested that the court should seek a preliminary ruling on whether the specific situation and conditions of work in the case could be considered objective reasons in accordance with clause 5(1)(a) of the Fixed-Term Framework Agreement. The Swedish Labour Court decided that the Fixed-Term Work Directive was not applicable in the case and that there was no reason to ask for a preliminary ruling. This case note discusses the outcome of the case and the reasoning of the Swedish Labour Court of specific interest in relation to the Fixed-Term Work Directive.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138961458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-19DOI: 10.1177/20319525231221097
Alan Eustace
In September 2022, the Commission adopted a proposal for a Regulation on prohibiting products made with forced labour on the Union market. This arises in a context of rising concern over many years about breaches of workers’ fundamental rights and core standards of the International Labour Organization in supply chains of products that are marketed in Europe, particularly where multinational corporations have offshored production to states without the high labour standards enforced in the EU. There has also long been widespread concern, particularly from trade unions, that such offshoring enables manufacturers to undercut labour protections of European workers. Furthermore, the offshoring of manufacturing has enabled certain third countries to develop their industrial and technological capacities in ways that create geostrategic risks for the EU and its Member States, as these third countries become ‘systemic rivals’ of the Union. First, this article argues that the proposed Regulation fits with Anu Bradford's theory of the ‘Brussels Effect’ exposited in her 2019 book of that name, and that the Union should take advantage of Bradford's insights in developing the Regulation and future legal instruments. Bradford established the Brussels Effect as an empirical reality; this article makes a normative case that, in this instance, the EU institutions should actively embrace it as a means to advance its goals. The proposed Regulation is an example of the Union leveraging market power to accomplish normative goals, by exporting its values to third countries. This offers room for the EU to be a force for good in the world, answering some of the qualms raised in Bradford's work about the potential ‘imperialism’ of the Brussels Effect. The present article argues the Union should go further, try to ‘externalise’ more of the social acquis in the field of labour law, leveraging its international market power to both improve labour standards around the globe. This article challenges Bradford's original contention that the Brussels Effect does not apply to labour standards, arguing instead that it is possible, and normatively desirable, for the Union to follow this Regulation with a broader suite of measures aimed at globalising European labour standards, with benefits for both third-country nationals and citizens of the Union. Second, the article links the proposed Regulation to concern about the geostrategic vulnerability of Member States and the Union as a whole, where essential products are manufactured in third countries. This became apparent during the Covid-19 pandemic, with many critical supplies predominantly manufactured outside the Union. The ‘strategic autonomy’ agenda of the EU implies re-shoring of important industry, which is more easily accomplished where EU regulation lessens the ability of third countries to undercut the EU with low labour standards. This will have long-term economic benefits for the Union and its citizens, as well as depressi
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Pub Date : 2023-12-15DOI: 10.1177/20319525231221093
Karol Muszyński
This contribution discusses the CJEU ruling in C-356/21 J.K. v TP S.A. It concludes that the ruling contributes to the ongoing development that disentangles the concept of the protection of working conditions from the employment relationship, granting self-employed workers who provide work on a personal basis protection against discrimination. It further discusses the ruling in the context of the spread of non-standard forms of employment on the labour market and policy initiatives to tackle them. Case C-356/21 J.K. v TP S.A. C-587/20 – HK/Danmark and HK/Privat; C-507/18 - Associazione Avvocatura per i diritti LGBTI
这篇论文讨论了欧盟法院在 C-356/21 J.K. 诉 TP S.A 案中的裁决。论文的结论是，该裁决促进了将工作条件保护概念与雇佣关系相分离的持续发展，使以个人身份提供工作的自营职业者免受歧视。报告还结合劳动力市场上非标准就业形式的蔓延以及应对这些问题的政策举措，进一步讨论了该裁决。案例 C-356/21 J.K. v TP S.A. C-587/20 - HK/Danmark and HK/Privat；C-507/18 - Associazione Avvocatura per i diritti LGBTI
{"title":"Anti-discrimination Legislation and Protection of Working Conditions of the Self-employed","authors":"Karol Muszyński","doi":"10.1177/20319525231221093","DOIUrl":"https://doi.org/10.1177/20319525231221093","url":null,"abstract":"This contribution discusses the CJEU ruling in C-356/21 J.K. v TP S.A. It concludes that the ruling contributes to the ongoing development that disentangles the concept of the protection of working conditions from the employment relationship, granting self-employed workers who provide work on a personal basis protection against discrimination. It further discusses the ruling in the context of the spread of non-standard forms of employment on the labour market and policy initiatives to tackle them. Case C-356/21 J.K. v TP S.A. C-587/20 – HK/Danmark and HK/Privat; C-507/18 - Associazione Avvocatura per i diritti LGBTI","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138998742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-10DOI: 10.1177/20319525231219228
Sven Schreurs
Social policy at the EU level remains a notably limited enterprise. The Union appears unable to address social inequalities without treading into politicised areas of national decision-making, since intervention in the social domain touches upon core questions of national identity, sovereignty and democracy. In this article, I explore the fraught relationship between EU social policy and the principle of subsidiarity, which has frequently served to legitimate support for as well as opposition to supranational action in the social domain, even when and where the Union has well-defined competences to legislate. The article engages in a conceptual analysis of the implications of subsidiarity for EU social policy and labour law, illustrated with a case study that examines usages of the principle by different institutional actors in recent debates on EU social directives. While it clearly provides a convenient rhetorical instrument to political actors, I argue, the concept of subsidiarity fails to serve as an organising principle for the multilevel governance of social and labour policy. Scholarly and policy debates on the constitution of a more social Europe are therefore best oriented away from the language of subsidiarity and should focus instead on effective and democratically legitimate ways of delivering the social promises of both the EU and its Member States.
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Pub Date : 2023-12-06DOI: 10.1177/20319525231219624
Martin Gruber-Risak, Sascha Obrecht
This article discusses a recent decision of the Austrian Supreme Court on the period of limitation for annual leave entitlements in light of the Working Time Directive 2003/88 (WTD). In the past, the Supreme Court's case law has repeatedly been criticised in the literature, as the Court – based on the corresponding national provision – considered the (rather long) period of limitation after the mere passage of time to be in line with EU law. The decision under discussion has now changed this line of case law, but questions remain over the legal methodology. Austrian Supreme Court ( Oberster Gerichtshof – OGH) of 27.6.2023, 8 ObA 23/23z, ECLI:AT:OGH0002:2023:008OBA00023.23Z.0627.000.
本文讨论了奥地利最高法院最近根据2003/88年《工作时间指令》(WTD)就年假权利的限制期限作出的一项决定。在过去，最高法院的判例法在文献中一再受到批评，因为法院-基于相应的国家规定-认为(相当长的)时效期在仅仅经过一段时间后符合欧盟法律。目前正在讨论的裁决已经改变了判例法的这条路线，但法律方法上的问题仍然存在。奥地利最高法院(Oberster Gerichtshof - OGH)， 27.6.2023, 8 ObA 23/23z, ECLI:AT: ogh0002: 20123:008 oba00023.23 z .0627.000。
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