A. Noack, Leah F. Vosko, Adam D. K. King, V. Osten, Emily J. Clare
This article examines labour standards violations and enforcement activities in Canada’s federally regulated private sector (FRPS) between 2006 and 2018. Drawing on an administrative data set (known as the Labour Application 2000 (LA2K)) from the federal Labour Program of Employment and Social Development Canada – we illustrate the dominance of a complianceoriented approach to labour standards enforcement in the federal labour inspectorate. This compliance- oriented model of enforcement assumes that most labour standards violations result from lack of knowledge on the part of employers, and that violations are exceptional rather than a regular feature of contemporary business practices geared to cost-containment. Further, the dominance of a compliance-based enforcement strategy is rooted in the historically unique working conditions, industrial composition, and social demographics of the FRPS. In short, the sector has been characterized historically by a disproportionate number of large firms, and a highly male-dominated workforce, engaged in full-time permanent employment. However, numerous labour standards violations are evident in growing pockets of precarious employment, particularly among small firms in the trucking sector. We argue that the litmus test for the regime’s efficacy should be the degree to which it serves employees in the most precarious employment situations. The inspectorate devotes relatively little time to proactive workplace inspections. Those violations that inspectors do uncover through proactive inspections are principally non-monetary and are rectified primarily on the basis of securing employers’ written commitments to bring their practices into compliance with minimum standards. By way of conclusion, the article outlines the ways in which reliance on a compliance model of enforcement in the FRPS may be contributing to the erosion of labour standards, particularly for those workers in industries where small firms dominate and precarious employment is concentrated, and calls for a more deterrence-oriented approach. Labour Standards, Enforcement, Compliance, Violations, Workplace Inspections, Federal Jurisdiction, Canada
{"title":"A Model Regulator? Investigating Reactive and Proactive Labour Standards Enforcement in Canada’s Federally Regulated Private Sector","authors":"A. Noack, Leah F. Vosko, Adam D. K. King, V. Osten, Emily J. Clare","doi":"10.54648/ijcl2021008","DOIUrl":"https://doi.org/10.54648/ijcl2021008","url":null,"abstract":"This article examines labour standards violations and enforcement activities in Canada’s federally regulated private sector (FRPS) between 2006 and 2018. Drawing on an administrative data set (known as the Labour Application 2000 (LA2K)) from the federal Labour Program of Employment and Social Development Canada – we illustrate the dominance of a complianceoriented approach to labour standards enforcement in the federal labour inspectorate. This compliance- oriented model of enforcement assumes that most labour standards violations result from lack of knowledge on the part of employers, and that violations are exceptional rather than a regular feature of contemporary business practices geared to cost-containment. Further, the dominance of a compliance-based enforcement strategy is rooted in the historically unique working conditions, industrial composition, and social demographics of the FRPS. In short, the sector has been characterized historically by a disproportionate number of large firms, and a highly male-dominated workforce, engaged in full-time permanent employment. However, numerous labour standards violations are evident in growing pockets of precarious employment, particularly among small firms in the trucking sector. We argue that the litmus test for the regime’s efficacy should be the degree to which it serves employees in the most precarious employment situations. The inspectorate devotes relatively little time to proactive workplace inspections. Those violations that inspectors do uncover through proactive inspections are principally non-monetary and are rectified primarily on the basis of securing employers’ written commitments to bring their practices into compliance with minimum standards. By way of conclusion, the article outlines the ways in which reliance on a compliance model of enforcement in the FRPS may be contributing to the erosion of labour standards, particularly for those workers in industries where small firms dominate and precarious employment is concentrated, and calls for a more deterrence-oriented approach.\u0000Labour Standards, Enforcement, Compliance, Violations, Workplace Inspections, Federal Jurisdiction, Canada","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44243152","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}
{"title":"Book Review: Reflections on the Enforcement of Labour Law: A Review of Re-inventing Labour Law Enforcement. A Socio-Legal Analysis by Louise Munkholm Hart, 2020","authors":"Niklas Selberg","doi":"10.54648/ijcl2021015","DOIUrl":"https://doi.org/10.54648/ijcl2021015","url":null,"abstract":"","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48459459","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}
J. Fine, Daniel J. Galvin, Jenn Round, Hana Shepherd
During the Covid-19 pandemic and accompanying recession, millions of low-wage workers have become increasingly vulnerable to exploitation. Limited scholarly attention, however, has been paid to the relationship between rising unemployment, labour standards violations, and government enforcement capacities during periods of economic recession. In this article, we begin to draw out these connections. First, we turn to the case of the Great Recession of 2008-2010 in the United States to examine the relationship between rising unemployment and minimum wage violations, using Current Population Survey (CPS) data to estimate minimum wage violation rates by industry and demographic group. We find that minimum wage violations rose in tandem with rising unemployment, and were shouldered by some groups of low-wage workers more than others, and that they were unexpectedly affected certain industries more than others. We then use an analysis of internal complaint data filed with the San Francisco Office of Labour Standards Enforcement (OLSE) to illustrate that even during non-recession periods, the number of complaints received by industry are in some cases wildly disproportionate to the estimated violation rates by industry. This underscores the shortcomings of the complaint-based enforcement model, which is by far the most common mode of workplace regulation in the United States. Finally, we discuss how this empirical evidence points to the importance of developing alternatives to complaint-based models of enforcement – in particular, strategic enforcement and co-enforcement – especially during periods of high unemployment. Strategic Enforcement, Co-Enforcement, Great Recession, Wage Theft, Minimum Wage Violations
{"title":"Wage Theft in a Recession: Unemployment, Labour Violations, and Enforcement Strategies for Difficult Times","authors":"J. Fine, Daniel J. Galvin, Jenn Round, Hana Shepherd","doi":"10.54648/ijcl2021006","DOIUrl":"https://doi.org/10.54648/ijcl2021006","url":null,"abstract":"During the Covid-19 pandemic and accompanying recession, millions of low-wage workers have become increasingly vulnerable to exploitation. Limited scholarly attention, however, has been paid to the relationship between rising unemployment, labour standards violations, and government enforcement capacities during periods of economic recession. In this article, we begin to draw out these connections. First, we turn to the case of the Great Recession of 2008-2010 in the United States to examine the relationship between rising unemployment and minimum wage violations, using Current Population Survey (CPS) data to estimate minimum wage violation rates by industry and demographic group. We find that minimum wage violations rose in tandem with rising unemployment, and were shouldered by some groups of low-wage workers more than others, and that they were unexpectedly affected certain industries more than others. We then use an analysis of internal complaint data filed with the San Francisco Office of Labour Standards Enforcement (OLSE) to illustrate that even during non-recession periods, the number of complaints received by industry are in some cases wildly disproportionate to the estimated violation rates by industry. This underscores the shortcomings of the complaint-based enforcement model, which is by far the most common mode of workplace regulation in the United States. Finally, we discuss how this empirical evidence points to the importance of developing alternatives to complaint-based models of enforcement – in particular, strategic enforcement and co-enforcement – especially during periods of high unemployment.\u0000Strategic Enforcement, Co-Enforcement, Great Recession, Wage Theft, Minimum Wage Violations","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41801361","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}
The article explores the question of how labour law provisions are enforced in Germany. First, the central role of the labour courts is examined. In doing so, it not only looks at the constitutional foundations, but also at the special features of proceedings before the labour courts. Then the role of works councils in enforcing labour law is highlighted. The role of trade unions is also examined in more detail, showing in particular that some would like to see their importance in this area strengthened. Finally, the role of public authorities is examined. Enforcement of Labour Law in Germany: The Role of the Courts, the Works Councils, Trade Unions and State Authorities. General Questions, Constitutional Directions, Specific Regulations, Legal Policy Debate
{"title":"Enforcement of Labour Law: The Case of Germany","authors":"Bernd Waas","doi":"10.54648/ijcl2021011","DOIUrl":"https://doi.org/10.54648/ijcl2021011","url":null,"abstract":"The article explores the question of how labour law provisions are enforced in Germany. First, the central role of the labour courts is examined. In doing so, it not only looks at the constitutional foundations, but also at the special features of proceedings before the labour courts. Then the role of works councils in enforcing labour law is highlighted. The role of trade unions is also examined in more detail, showing in particular that some would like to see their importance in this area strengthened. Finally, the role of public authorities is examined.\u0000Enforcement of Labour Law in Germany: The Role of the Courts, the Works Councils, Trade Unions and State Authorities. General Questions, Constitutional Directions, Specific Regulations, Legal Policy Debate","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47847987","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}
This article examines the main compliance and enforcement techniques in Italian labour law. With regard to compliance techniques, three examples are examined: the sufficient wage, the vicarious liability rule in the case of outsourcing, and health and safety regulations in the light of the EU model. The importance of the strong presence of unions and workers’ representatives inside the workplace is also emphasized. The article then addresses the evolving role of the labour inspectorate in a modern enforcement perspective and the main rules and practices of courts dealing with employment matters, which traditionally play a crucial role in the Italian system. Compliance Techniques – Unions’ Role – Enforcement – Labour Inspections – Labour Courts
{"title":"Compliance and Enforcement in Italian Labour Law","authors":"Riccardo Del Punta","doi":"10.54648/ijcl2021012","DOIUrl":"https://doi.org/10.54648/ijcl2021012","url":null,"abstract":"This article examines the main compliance and enforcement techniques in Italian labour law. With regard to compliance techniques, three examples are examined: the sufficient wage, the vicarious liability rule in the case of outsourcing, and health and safety regulations in the light of the EU model. The importance of the strong presence of unions and workers’ representatives inside the workplace is also emphasized. The article then addresses the evolving role of the labour inspectorate in a modern enforcement perspective and the main rules and practices of courts dealing with employment matters, which traditionally play a crucial role in the Italian system.\u0000Compliance Techniques – Unions’ Role – Enforcement – Labour Inspections – Labour Courts","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48905309","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}
In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws. Deterrence, Enforcement, Compliance, Employment, Labour, Regulation
{"title":"Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement","authors":"Tess Hardy","doi":"10.54648/ijcl2021007","DOIUrl":"https://doi.org/10.54648/ijcl2021007","url":null,"abstract":"In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws.\u0000Deterrence, Enforcement, Compliance, Employment, Labour, Regulation","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46193853","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}
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
{"title":"A Behavioural Ethics Approach to Employment Law and Workplace Norms","authors":"Neta Nadiv, Y. Feldman","doi":"10.54648/ijcl2021010","DOIUrl":"https://doi.org/10.54648/ijcl2021010","url":null,"abstract":"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.\u0000Behavioural Ethics, Employment Law, Unnoticed Harms","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47472437","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}
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
{"title":"Labour Inspections in Post-Soviet Countries: Reform or Collapse?","authors":"N. Lyutov, I. Voitkovska","doi":"10.54648/ijcl2021013","DOIUrl":"https://doi.org/10.54648/ijcl2021013","url":null,"abstract":"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.\u0000Labour Legislation, International Labour Law, Labour Inspection, Law Enforcement, Post-Soviet Countries, Compliance, Occupational Safety and Health","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71183410","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}
Data collected from fitness trackers worn by employees could be very useful for businesses. The sharing of this data with employers is already a well-established practice in the United States, and companies in Europe are showing an interest in the introduction of such devices among their workforces. Our argument is that employers processing their employees’ fitness trackers data is unlikely to be lawful under the General Data Protection Regulation (GDPR). Wearable fitness trackers, such as Fitbit and AppleWatch devices, collate intimate data about the wearer’s location, sleep and heart rate. As a result, we consider that they not only represent a novel threat to the privacy and autonomy of the wearer, but that the data gathered constitutes ‘health data’ regulated by Article 9. Processing health data, including, in our view, fitness tracking data, is prohibited unless one of the specified conditions in the GDPR applies. After examining a number of legitimate bases which employers can rely on, we conclude that the data processing practices considered do not comply with the principle of lawfulness that is central to the GDPR regime. We suggest alternative schema by which wearable fitness trackers could be integrated into an organization to support healthy habits amongst employees, but in a manner that respects the data privacy of the individual wearer. Fitness Trackers, GDPR, Privacy, Data Protection, Employment, Principle of Lawfulness, Fitbit, Apple Watch
从员工佩戴的健身追踪器中收集的数据对企业非常有用。在美国，与雇主分享这些数据已经是一种成熟的做法，欧洲的公司也对在员工中引入此类设备表现出了兴趣。我们的论点是，根据《通用数据保护条例》(GDPR)，雇主处理员工的健身追踪器数据不太可能合法。Fitbit和AppleWatch等可穿戴健身追踪器会整理佩戴者的位置、睡眠和心率等私密数据。因此，我们认为它们不仅对佩戴者的隐私和自主权构成了新的威胁，而且所收集的数据构成了第9条规定的“健康数据”。我们认为，除非GDPR中的特定条件之一适用，否则禁止处理健康数据，包括健身跟踪数据。在审查了雇主可以依赖的一些合法基础之后，我们得出结论认为，所考虑的数据处理实践不符合作为GDPR制度核心的合法性原则。我们建议将可穿戴健身追踪器集成到组织中，以支持员工的健康习惯，但同时尊重个人佩戴者的数据隐私。健身追踪器，GDPR，隐私，数据保护，就业，合法原则，Fitbit, Apple Watch
{"title":"Is That Lawful? Data Privacy and Fitness Trackers in the Workplace","authors":"Philippa Collins, S. Marassi","doi":"10.54648/ijcl2021003","DOIUrl":"https://doi.org/10.54648/ijcl2021003","url":null,"abstract":"Data collected from fitness trackers worn by employees could be very useful for businesses. The sharing of this data with employers is already a well-established practice in the United States, and companies in Europe are showing an interest in the introduction of such devices among their workforces. Our argument is that employers processing their employees’ fitness trackers data is unlikely to be lawful under the General Data Protection Regulation (GDPR). Wearable fitness trackers, such as Fitbit and AppleWatch devices, collate intimate data about the wearer’s location, sleep and heart rate. As a result, we consider that they not only represent a novel threat to the privacy and autonomy of the wearer, but that the data gathered constitutes ‘health data’ regulated by Article 9. Processing health data, including, in our view, fitness tracking data, is prohibited unless one of the specified conditions in the GDPR applies. After examining a number of legitimate bases which employers can rely on, we conclude that the data processing practices considered do not comply with the principle of lawfulness that is central to the GDPR regime. We suggest alternative schema by which wearable fitness trackers could be integrated into an organization to support healthy habits amongst employees, but in a manner that respects the data privacy of the individual wearer.\u0000Fitness Trackers, GDPR, Privacy, Data Protection, Employment, Principle of Lawfulness, Fitbit, Apple Watch","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47344194","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}
This article draws on empirical research that reveals the role played by farmworkers’ committees in the fruit and wine farming sectors in the Western Cape of South Africa, where trade union density is extremely low. It examines the legitimacy of these committees as a form of worker representation, with reference to relevant domestic labour legislation, common law, International Labour Organization (ILO) instruments and key private social codes, including the international Fairtrade Standard for Hired Labour. In the process, the relationship between the public and private governance instruments in the sector is considered. Farmworkers’ committees are found to fall through a regulatory gap between the different governance systems, highlighting their lack of integration and legal recognition. This is notwithstanding their potential to fill the representation gap which exists for many workers on farms. The article concludes by proposing a new approach to regulating these committees, primarily with a view to promoting more effective but still legitimate organizing and collective bargaining for all farmworkers, in the absence of representative trade unions. Freedom of Association, Collective Bargaining, Representation Gap, Low Union Density, Good Practice Farms, Western Cape Farmworkers, Fairtrade Standard for Hired Labour, South Africa
{"title":"Effective Representation: Whereto for Workers on Fruit and Wine Farms in South Africa?","authors":"E. Fergus, Shane Godfrey","doi":"10.54648/ijcl2021001","DOIUrl":"https://doi.org/10.54648/ijcl2021001","url":null,"abstract":"This article draws on empirical research that reveals the role played by farmworkers’ committees in the fruit and wine farming sectors in the Western Cape of South Africa, where trade union density is extremely low. It examines the legitimacy of these committees as a form of worker representation, with reference to relevant domestic labour legislation, common law, International Labour Organization (ILO) instruments and key private social codes, including the international Fairtrade Standard for Hired Labour. In the process, the relationship between the public and private governance instruments in the sector is considered. Farmworkers’ committees are found to fall through a regulatory gap between the different governance systems, highlighting their lack of integration and legal recognition. This is notwithstanding their potential to fill the representation gap which exists for many workers on farms. The article concludes by proposing a new approach to regulating these committees, primarily with a view to promoting more effective but still legitimate organizing and collective bargaining for all farmworkers, in the absence of representative trade unions.\u0000Freedom of Association, Collective Bargaining, Representation Gap, Low Union Density, Good Practice Farms, Western Cape Farmworkers, Fairtrade Standard for Hired Labour, South Africa","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46698412","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}
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