{"title":"A Review of Closing the Enforcement Gap: Improving Employment Standards Protections for People in Precarious Jobs, by Leah F. Vosko et al.","authors":"Timothy J. Bartkiw","doi":"10.54648/ijcl2021004","DOIUrl":"https://doi.org/10.54648/ijcl2021004","url":null,"abstract":"\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":"49501772","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 investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers’ legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available. Judicial Deference; Public Sector Labour Law; Legislative Override; Freedom of Association; section 2(D); The Canadian Charter of Rights and Freedoms; The Expenditure Restraint Act, Pre-Legislative Consultation; Legitimacy; Special Interests
{"title":"The State Giveth and Taketh Away: Public Sector Labour Law, the Legitimacy of the Legislative Override Power and Constitutional Freedom of Association in Canada","authors":"Claire Mummé","doi":"10.54648/ijcl2020025","DOIUrl":"https://doi.org/10.54648/ijcl2020025","url":null,"abstract":"This article investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers’ legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available.\u0000Judicial Deference; Public Sector Labour Law; Legislative Override; Freedom of Association; section 2(D); The Canadian Charter of Rights and Freedoms; The Expenditure Restraint Act, Pre-Legislative Consultation; Legitimacy; Special Interests","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42606210","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":"List of Abbreviations","authors":"","doi":"10.54648/ijcl2020028","DOIUrl":"https://doi.org/10.54648/ijcl2020028","url":null,"abstract":"","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47280811","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 this article, I emphasize the social realm, rather than legislative action or judicial enumeration, as the preferred site for understanding the constitution of the legal right to association. I argue that the substance of a right – what we understand when we claim a right – emerges through contextual socio-historical processes before it penetrates the imagination of either the legislature or the judiciary. This emphasis on the social realm in understanding the contour of a right is particularly important for postcolonial societies such as India, where a Western universalist rights language is constitutionally adopted to unify a country that comprises heterogeneous socio-cultural milieux. Partha Chatterjee articulates this disjuncture by offering a distinction between the formal (constitutional) civil society and the informal political society. Drawing on Chatterjee’s distinction and interpreting historical ideas and their continued relevance on the nature of industrial relations, I show how the judiciary failed to take note of, and the legislature only belatedly reacted to, the validity of worker cooperatives as a legal right to association even when it received broad social recognition.
{"title":"Constituting a Right to Association: A Postcolonial Exploration","authors":"Supriya Routh","doi":"10.54648/ijcl2020026","DOIUrl":"https://doi.org/10.54648/ijcl2020026","url":null,"abstract":"In this article, I emphasize the social realm, rather than legislative action or judicial enumeration, as the preferred site for understanding the constitution of the legal right to association. I argue that the substance of a right – what we understand when we claim a right – emerges through contextual socio-historical processes before it penetrates the imagination of either the legislature or the judiciary. This emphasis on the social realm in understanding the contour of a right is particularly important for postcolonial societies such as India, where a Western universalist rights language is constitutionally adopted to unify a country that comprises heterogeneous socio-cultural milieux. Partha Chatterjee articulates this disjuncture by offering a distinction between the formal (constitutional) civil society and the informal political society. Drawing on Chatterjee’s distinction and interpreting historical ideas and their continued relevance on the nature of industrial relations, I show how the judiciary failed to take note of, and the legislature only belatedly reacted to, the validity of worker cooperatives as a legal right to association even when it received broad social recognition.","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44780323","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 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
{"title":"‘Masters and Servers’: Collective Labour Rights and Private Government in the Contemporary World of Work","authors":"V. De Stefano","doi":"10.54648/ijcl2020022","DOIUrl":"https://doi.org/10.54648/ijcl2020022","url":null,"abstract":"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.\u0000Workplace Surveillance, Artificial Intelligence, Predictive Algorithms, Big Data, Platform Work, Surveillance Capitalism, Subordination, Contract of Employment, Collective Labour Rights","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43759518","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":"Freedom of Association: Courts and Legislatures Introduction to the Special Issue","authors":"Alan L. Bogg","doi":"10.54648/ijcl2020021","DOIUrl":"https://doi.org/10.54648/ijcl2020021","url":null,"abstract":"","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47972204","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 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
{"title":"On Labour Representativeness: The Hidden Components of the Human Right to Freely Associate in Trade Unions","authors":"G. Mundlak","doi":"10.54648/ijcl2020023","DOIUrl":"https://doi.org/10.54648/ijcl2020023","url":null,"abstract":"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.\u0000Labour Law, Trade Unions, Representation, ILO, Comparative","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47696657","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":"Article Index","authors":"","doi":"10.54648/ijcl2020027","DOIUrl":"https://doi.org/10.54648/ijcl2020027","url":null,"abstract":"","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44300710","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 focuses on two Swedish benefits: occupational pensions and unemployment benefits. Both have undergone interesting developments recently, partly relating to changes in the public social security system, partly to changes in the labour market. These changes have led the social partners at sectoral level to decide on different priorities when negotiating collective agreements or offering unilateral benefits to their members. The overarching aim of the article is to illustrate and explain the increasing activity at sectoral level regarding occupational pensions and unemployment benefits. However, there are changes in the labour market that the social partners have not managed to address, or that it might not even be their role to address. When a significant proportion of welfare benefits derive from collective agreements and membership of private organizations, this has implications for atypical and self-employed workers, that are further elaborated in the article. Occupational Benefits, Pension, Unemployment, Collective Agreements, Swedish Model, the Social Partners, Atypical Work, Self-Employed, Collective Bargaining, Transition Agreements, Occupational Welfare
{"title":"Occupational Pensions and Unemployment Benefits in Sweden","authors":"C. Johansson","doi":"10.54648/ijcl2020018","DOIUrl":"https://doi.org/10.54648/ijcl2020018","url":null,"abstract":"This article focuses on two Swedish benefits: occupational pensions and unemployment benefits. Both have undergone interesting developments recently, partly relating to changes in the public social security system, partly to changes in the labour market. These changes have led the social partners at sectoral level to decide on different priorities when negotiating collective agreements or offering unilateral benefits to their members. The overarching aim of the article is to illustrate and explain the increasing activity at sectoral level regarding occupational pensions and unemployment benefits. However, there are changes in the labour market that the social partners have not managed to address, or that it might not even be their role to address. When a significant proportion of welfare benefits derive from collective agreements and membership of private organizations, this has implications for atypical and self-employed workers, that are further elaborated in the article.\u0000Occupational Benefits, Pension, Unemployment, Collective Agreements, Swedish Model, the Social Partners, Atypical Work, Self-Employed, Collective Bargaining, Transition Agreements, Occupational Welfare","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49075204","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 recent decades, the use of collectively bargained payments to cover parental leave has become increasingly important in Sweden. As part of a general trend, supplementary payments from collectively bargained schemes for risks covered by the social security system have taken on a major role. In the literature, this development has been partly explained by an overall decline in the Swedish welfare state, starting in the early 1990s. This article explores the interaction between collectively bargained provisions on supplements for working parents in Sweden, and their interaction with the statutory system of parental leave benefits. The long-standing emphasis on work-life balance in Swedish public policy is well known, but the significance of collective bargaining and the involvement of the social partners in this area has received less attention. Starting from national legislation and policies on work-family reconciliation, this article explores a number of effects of the collectively bargained supplements: with respect to the interests that come into play, with respect to the finances of working parents, and with respect to gender equality and the division of parental leave between men and women. It is argued that one effect of a development in which collective bargaining provides for an increasing share of income during parental leave is that key public policy ideas on the design of parental leave regulation are tweaked to the benefit of other ideas promoted by the social partners. Moreover, as access to collectively bargained supplements is not the same for all employees, another effect is that the supplements come into conflict with the principle of universality that underpins the social security system. A third effect, however, is that collectively bargained supplements provide an important but not widely recognized incentive for parents to move away from a gendered division of parental leave. Parental Rights, Parental Leave, Industrial Relations, Occupational Parental Leave Benefit, Sweden, Interaction Between Labour Legislation And Collective Bargaining
{"title":"Collective Bargaining for Working Parents in Sweden and Its Interaction with the Statutory Benefit System","authors":"Jenny Julén Votinius","doi":"10.54648/ijcl2020019","DOIUrl":"https://doi.org/10.54648/ijcl2020019","url":null,"abstract":"In recent decades, the use of collectively bargained payments to cover parental leave has become increasingly important in Sweden. As part of a general trend, supplementary payments from collectively bargained schemes for risks covered by the social security system have taken on a major role. In the literature, this development has been partly explained by an overall decline in the Swedish welfare state, starting in the early 1990s. This article explores the interaction between collectively bargained provisions on supplements for working parents in Sweden, and their interaction with the statutory system of parental leave benefits. The long-standing emphasis on work-life balance in Swedish public policy is well known, but the significance of collective bargaining and the involvement of the social partners in this area has received less attention. Starting from national legislation and policies on work-family reconciliation, this article explores a number of effects of the collectively bargained supplements: with respect to the interests that come into play, with respect to the finances of working parents, and with respect to gender equality and the division of parental leave between men and women. It is argued that one effect of a development in which collective bargaining provides for an increasing share of income during parental leave is that key public policy ideas on the design of parental leave regulation are tweaked to the benefit of other ideas promoted by the social partners. Moreover, as access to collectively bargained supplements is not the same for all employees, another effect is that the supplements come into conflict with the principle of universality that underpins the social security system. A third effect, however, is that collectively bargained supplements provide an important but not widely recognized incentive for parents to move away from a gendered division of parental leave.\u0000Parental Rights, Parental Leave, Industrial Relations, Occupational Parental Leave Benefit, Sweden, Interaction Between Labour Legislation And Collective Bargaining","PeriodicalId":44213,"journal":{"name":"International Journal of Comparative Labour Law and Industrial Relations","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46338649","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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