{"title":"The Redress of Law: Globalisation, Constitutionalism and Market Capture","authors":"Luca Siliquini-Cinelli","doi":"10.1093/indlaw/dwac039","DOIUrl":"https://doi.org/10.1093/indlaw/dwac039","url":null,"abstract":"","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"28 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77437474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, a number of new style trade unions have emerged which are said to exhibit a more ‘radical’ orientation to social change than more ‘traditional’ trade unions. This has raised questions as to the significance of the willingness of these new style trade unions to mobilise the law in pursuit of that change, and in particular, to engage in so-called ‘strategic litigation’. Through a case study of some of the legal mobilisations of one of the more well-known new style trade unions in the UK, the Independent Workers of Great Britain union (IWGB), drawing on insights from the literature on legal mobilisation, and supplementing this with insights from the Marxist theory of the legal form, this paper will highlight the distinctiveness of these new style trade unions and explain the basis of their radical potential, before showing how that potential is limited, or negated, by the particular way in which they engage with law in practice. The paper will conclude with some observation as to what a more radical orientation to the law might look like for social organisations and trade unions in practice.
{"title":"Legal Mobilisations, Trade Unions and Radical Social Change: A Case Study of the IWGB","authors":"Zoe Adams","doi":"10.1093/indlaw/dwac031","DOIUrl":"https://doi.org/10.1093/indlaw/dwac031","url":null,"abstract":"\u0000 In recent years, a number of new style trade unions have emerged which are said to exhibit a more ‘radical’ orientation to social change than more ‘traditional’ trade unions. This has raised questions as to the significance of the willingness of these new style trade unions to mobilise the law in pursuit of that change, and in particular, to engage in so-called ‘strategic litigation’. Through a case study of some of the legal mobilisations of one of the more well-known new style trade unions in the UK, the Independent Workers of Great Britain union (IWGB), drawing on insights from the literature on legal mobilisation, and supplementing this with insights from the Marxist theory of the legal form, this paper will highlight the distinctiveness of these new style trade unions and explain the basis of their radical potential, before showing how that potential is limited, or negated, by the particular way in which they engage with law in practice. The paper will conclude with some observation as to what a more radical orientation to the law might look like for social organisations and trade unions in practice.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"93 10 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81984471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Equal pay litigation is often highly technical, with a drawn out and costly legal battle for claimants. This is somewhat because of the way equal pay law is constructed, as the requirement to have specific, named comparators can be an area of intense dispute. The complexity and length of cases look set to increase as the parameters of equal pay for work of equal value are explored, and occupational segregation is challenged in the employment tribunals and courts. This article considers one of the largest obstacles to quick and efficient equal pay litigation: the imbalance of access to information between employer and employee. The difficulties of applications for disclosure orders are discussed, alongside pay transparency measures and the recent proposals for a right to direct access to a suspected comparator’s pay data. We consider whether the proposed right is a viable, swifter route to information parity and greater efficiency in equal pay litigation, in light of the experience of freedom of information requests regarding equal pay. Specifically, we note the tension that may arise between the ‘Right to Know’ a comparator’s pay, and the data protection obligations of the employer.
{"title":"Pay Transparency, Information Access Rights and Data Protection Law: Exploring Viable Alternatives to Disclosure Orders in Equal Pay Litigation","authors":"Victoria E. Hooton, Henry Pearce","doi":"10.1093/indlaw/dwac028","DOIUrl":"https://doi.org/10.1093/indlaw/dwac028","url":null,"abstract":"\u0000 Equal pay litigation is often highly technical, with a drawn out and costly legal battle for claimants. This is somewhat because of the way equal pay law is constructed, as the requirement to have specific, named comparators can be an area of intense dispute. The complexity and length of cases look set to increase as the parameters of equal pay for work of equal value are explored, and occupational segregation is challenged in the employment tribunals and courts. This article considers one of the largest obstacles to quick and efficient equal pay litigation: the imbalance of access to information between employer and employee. The difficulties of applications for disclosure orders are discussed, alongside pay transparency measures and the recent proposals for a right to direct access to a suspected comparator’s pay data. We consider whether the proposed right is a viable, swifter route to information parity and greater efficiency in equal pay litigation, in light of the experience of freedom of information requests regarding equal pay. Specifically, we note the tension that may arise between the ‘Right to Know’ a comparator’s pay, and the data protection obligations of the employer.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"24 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73802307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article sets out a human rights-based critique of one aspect of the common law wage/work bargain: the rule that entitles employers to deduct an entire week’s pay from those taking action short of strike, and who thereby perform most, but not all, of their contractual duties. It makes the case that that rule, established in Miles v Wakefield MDC and Wiluszynski v Tower Hamlets over 35 years ago, constitutes a disproportionate interference with an employee’s right to strike and to take industrial action, under Article 11 of the ECHR. The article shows how such cases might be brought, depending on whether an employee is in the public or private sector and iterates the argument for implying a duty of ‘rights-obedience’ into the contract—either as a free-standing duty or as part of an expansion of the duty of mutual trust and confidence—as a corrective.
本文以人权为基础，对普通法工资/工作谈判的一个方面进行了批判:即雇主有权从那些在罢工之外采取行动并因此履行了大部分(但不是全部)合同义务的人身上扣除一整个星期的工资。它认为，根据欧洲人权公约第11条，在35年前的Miles v Wakefield MDC和Wiluszynski v Tower Hamlets案中确立的这一规则，对雇员罢工和采取工业行动的权利构成了不成比例的干涉。这篇文章展示了这样的案例是如何被提起的，这取决于雇员是在公共部门还是私营部门，并反复论证了在合同中暗示“权利服从”的义务——要么作为独立的义务，要么作为相互信任和信心义务的一部分——作为一种纠正。
{"title":"We’re Miles Apart: Disproportionate Deductions from Wages, Industrial Action and Human Rights","authors":"Dave Mead","doi":"10.1093/indlaw/dwac037","DOIUrl":"https://doi.org/10.1093/indlaw/dwac037","url":null,"abstract":"\u0000 This article sets out a human rights-based critique of one aspect of the common law wage/work bargain: the rule that entitles employers to deduct an entire week’s pay from those taking action short of strike, and who thereby perform most, but not all, of their contractual duties. It makes the case that that rule, established in Miles v Wakefield MDC and Wiluszynski v Tower Hamlets over 35 years ago, constitutes a disproportionate interference with an employee’s right to strike and to take industrial action, under Article 11 of the ECHR. The article shows how such cases might be brought, depending on whether an employee is in the public or private sector and iterates the argument for implying a duty of ‘rights-obedience’ into the contract—either as a free-standing duty or as part of an expansion of the duty of mutual trust and confidence—as a corrective.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"21 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79034758","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ian Cunningham, Philip James, Alina Baluch, Anne-Marie Cullen
Using a regulatory analysis from Martinez Lucio and Mackenzie (2014 and 2016), this study contributes to debates concerning the capacity of ‘soft’ regulation to advance employment conditions and outcomes. This study explores the implementation of a real living wage policy for employees in outsourced Scottish social care. Despite employer compliance in implementing the living wage, it had a mixed impact on the income of workers and did not improve staff recruitment and retention. The theoretical framework challenges recent optimistic views concerning the impact of such regulation by revealing unintended and problematic consequences, such as problems with differentials and providers walking away from contracts. It further reveals how actor roles, interests, power resources and inter-relationships, as well as surrounding structural contextual influences (austerity, marketisation and engrained values and processes in political settlements), interacted to shape these outcomes. Insights from this study include that ‘soft’ regulation was unable to create conditions for actors such as trade unions, employers and non-governmental organisations to colonise or seize the regulatory space to secure the full benefits of the Scottish Living Wage. The political settlement with the Scottish Government allowed local authorities to retain coercive control over other actors in the regulatory space. Employers and trade unions were further hindered by lack of unity and continued isolation from decisions, respectively. Surrounding economic and ideological restrictions imposed by the central UK government’s austerity agenda, and the retention of powers over employment regulation added to the failure of these ‘soft’ measures to increase pay and improve recruitment and retention in social care.
{"title":"Introducing Fair Work through ‘Soft’ Regulation in Outsourced Public Service Networks: Explaining Unintended Outcomes in the Implementation of the Scottish Living Wage Policy","authors":"Ian Cunningham, Philip James, Alina Baluch, Anne-Marie Cullen","doi":"10.1093/indlaw/dwac023","DOIUrl":"https://doi.org/10.1093/indlaw/dwac023","url":null,"abstract":"Using a regulatory analysis from Martinez Lucio and Mackenzie (2014 and 2016), this study contributes to debates concerning the capacity of ‘soft’ regulation to advance employment conditions and outcomes. This study explores the implementation of a real living wage policy for employees in outsourced Scottish social care. Despite employer compliance in implementing the living wage, it had a mixed impact on the income of workers and did not improve staff recruitment and retention. The theoretical framework challenges recent optimistic views concerning the impact of such regulation by revealing unintended and problematic consequences, such as problems with differentials and providers walking away from contracts. It further reveals how actor roles, interests, power resources and inter-relationships, as well as surrounding structural contextual influences (austerity, marketisation and engrained values and processes in political settlements), interacted to shape these outcomes. Insights from this study include that ‘soft’ regulation was unable to create conditions for actors such as trade unions, employers and non-governmental organisations to colonise or seize the regulatory space to secure the full benefits of the Scottish Living Wage. The political settlement with the Scottish Government allowed local authorities to retain coercive control over other actors in the regulatory space. Employers and trade unions were further hindered by lack of unity and continued isolation from decisions, respectively. Surrounding economic and ideological restrictions imposed by the central UK government’s austerity agenda, and the retention of powers over employment regulation added to the failure of these ‘soft’ measures to increase pay and improve recruitment and retention in social care.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"1639 ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138506247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Aislinn Kelly-Lyth, Halefom H. Abraha, Jeremias Adams-Prassl
{"title":"From ‘Code’ to ‘Guidance’: Revising the Instrument on Data and Employment","authors":"Aislinn Kelly-Lyth, Halefom H. Abraha, Jeremias Adams-Prassl","doi":"10.1093/indlaw/dwac021","DOIUrl":"https://doi.org/10.1093/indlaw/dwac021","url":null,"abstract":"","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"49 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80758445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A History of Regulating Working Families: Strains, Stereotypes, Strategies and Solutions","authors":"A. Zbyszewska","doi":"10.1093/indlaw/dwac026","DOIUrl":"https://doi.org/10.1093/indlaw/dwac026","url":null,"abstract":"","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"31 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88031599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Justice was sorely experienced by Scottish miners in the strike against pit closures and redundancies in 1984–85. In Scotland strikers were arrested by police officers at twice the rate of those in England and Wales and were three times more likely to be dismissed from employment by the National Coal Board. Analysis uses Gramsci as guide: Margaret Thatcher’s Conservative government was engaged in an anti-trade union war of position as well as a war of manoeuvre. In Scotland, despite the strike’s legality, police officers and NCB officials outmanoeuvred the strikers by criminalising and victimising their local leaders. Arrests and relatively innocuous public-order convictions were followed by punitive sackings which reinforced the government’s positional untruths about the strike. This targeted action was strategic: to defeat the strike; and weaken opposition to the closure of some collieries while intensifying production at others. The subsequent acceleration of deindustrialisation was a further injustice. In contributing to further political divergence within the UK, however, it provided a route to restorative justice for former strikers and their supporters in Scotland. In 2022 the Scottish Parliament provided a collective and posthumous pardon for more than 500 people with strike-related convictions in Scottish courts.
{"title":"Strategic Injustice and the 1984–85 Miners’ Strike in Scotland","authors":"J. Phillips","doi":"10.1093/indlaw/dwac017","DOIUrl":"https://doi.org/10.1093/indlaw/dwac017","url":null,"abstract":"\u0000 Justice was sorely experienced by Scottish miners in the strike against pit closures and redundancies in 1984–85. In Scotland strikers were arrested by police officers at twice the rate of those in England and Wales and were three times more likely to be dismissed from employment by the National Coal Board. Analysis uses Gramsci as guide: Margaret Thatcher’s Conservative government was engaged in an anti-trade union war of position as well as a war of manoeuvre. In Scotland, despite the strike’s legality, police officers and NCB officials outmanoeuvred the strikers by criminalising and victimising their local leaders. Arrests and relatively innocuous public-order convictions were followed by punitive sackings which reinforced the government’s positional untruths about the strike. This targeted action was strategic: to defeat the strike; and weaken opposition to the closure of some collieries while intensifying production at others. The subsequent acceleration of deindustrialisation was a further injustice. In contributing to further political divergence within the UK, however, it provided a route to restorative justice for former strikers and their supporters in Scotland. In 2022 the Scottish Parliament provided a collective and posthumous pardon for more than 500 people with strike-related convictions in Scottish courts.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"514 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77083062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the effectiveness of private dispute resolution arrangements (PDRAs) established voluntarily by employers and unions in private- and public-sector firms and agencies in Ireland. PDRAs comprise three-person panels or sole adjudicators and combine binding or non-binding adjudication with internal mediation. PDRAs seek to rewrite the established rules and conventions governing dispute resolution within workplaces and to change the ways in which internal dispute resolution is aligned with external dispute resolution by state agencies. The majority of the eleven PDRAs examined are shown to be effective. One is described as ‘semi-dormant’ and two are shown to be less effective. Variations in the effectiveness of PDRAs are attributed to features of the internal and external contexts of the firms and agencies in which they have been established: the persistence of significant commercial and industrial relations challenges; the absence of disjunctures in organisations or industrial relations; the presence of champions; and the effects of industrial relations legacies. The paper contributes to the literature by systematically accounting for variations in the effectiveness of adjudication and arbitrations arrangements and concludes by considering whether the incidence of PDRAs is likely to continue rising.
{"title":"How Effective Is Private Dispute Resolution? Evidence From Ireland","authors":"W. Roche","doi":"10.1093/indlaw/dwac018","DOIUrl":"https://doi.org/10.1093/indlaw/dwac018","url":null,"abstract":"\u0000 This article examines the effectiveness of private dispute resolution arrangements (PDRAs) established voluntarily by employers and unions in private- and public-sector firms and agencies in Ireland. PDRAs comprise three-person panels or sole adjudicators and combine binding or non-binding adjudication with internal mediation. PDRAs seek to rewrite the established rules and conventions governing dispute resolution within workplaces and to change the ways in which internal dispute resolution is aligned with external dispute resolution by state agencies. The majority of the eleven PDRAs examined are shown to be effective. One is described as ‘semi-dormant’ and two are shown to be less effective. Variations in the effectiveness of PDRAs are attributed to features of the internal and external contexts of the firms and agencies in which they have been established: the persistence of significant commercial and industrial relations challenges; the absence of disjunctures in organisations or industrial relations; the presence of champions; and the effects of industrial relations legacies. The paper contributes to the literature by systematically accounting for variations in the effectiveness of adjudication and arbitrations arrangements and concludes by considering whether the incidence of PDRAs is likely to continue rising.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"43 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90806016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While employment laws exist to protect workers from the unfair exploitation, evidence suggests that wage theft is a prominent practice. Wage theft has received considerable public policy attention in several common law countries leading to the introduction of new legislation on the basis that existing legal regulations were inadequate and because the effects of wage theft are particularly deleterious for low-wage workers. Wage theft though remains underexplored in an Irish policy context. This article examines whether Ireland needs stronger laws to address wage theft by assessing if existing minimum wage and working time employment legislation provide an effective remedy for workers. The analysis finds that Irish laws already contain many provisions which new wage theft laws in other jurisdictions have introduced, suggesting radically new legislation is not needed. Several features of existing laws though obstruct workers in seeking remedy for underpayments and require amendment. Changing legislation, however, will likely be insufficient for an effective enforcement regime and it must be supplemented by statutory support for collective representation and enhancing labour inspectorate capacity to act on workers’ behalf.
{"title":"The Expansion of Wage Theft Legislation in Common Law Countries—Should Ireland be Next?","authors":"M. O'Sullivan","doi":"10.1093/indlaw/dwac019","DOIUrl":"https://doi.org/10.1093/indlaw/dwac019","url":null,"abstract":"\u0000 While employment laws exist to protect workers from the unfair exploitation, evidence suggests that wage theft is a prominent practice. Wage theft has received considerable public policy attention in several common law countries leading to the introduction of new legislation on the basis that existing legal regulations were inadequate and because the effects of wage theft are particularly deleterious for low-wage workers. Wage theft though remains underexplored in an Irish policy context. This article examines whether Ireland needs stronger laws to address wage theft by assessing if existing minimum wage and working time employment legislation provide an effective remedy for workers. The analysis finds that Irish laws already contain many provisions which new wage theft laws in other jurisdictions have introduced, suggesting radically new legislation is not needed. Several features of existing laws though obstruct workers in seeking remedy for underpayments and require amendment. Changing legislation, however, will likely be insufficient for an effective enforcement regime and it must be supplemented by statutory support for collective representation and enhancing labour inspectorate capacity to act on workers’ behalf.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"7 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85511098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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