This paper intervenes in ongoing discussions on emerging legislation and jurisprudence across jurisdictions offering employees the possibility to renounce established labour rights through individual labour rights waivers. Building on discussions about consent and coercion in the employment relationship, the paper argues that individual labour rights waivers in most cases undermine labour law’s overall emancipatory potential, as they reverse the decommodifying effects of nonwaivable labour rights by re-appropriating the capitalist market logic that those very rights seek to offset. The paper’s intervention is twofold. It first develops the argument about the emancipatory function of labour law, and uses it to examine the negative effects of individual waivers on labour law’s capacity to emancipate working people and society at large. Second, the paper introduces a jurisdiction that until now has not been considered in the discussions on individual waivers, namely Germany. Although discussions on individual waivers in the scholarly discourse in Germany are marginal, the paper examines what current exceptions to nonwaivability might qualify as waivers, and argues that the reasons why individual labour rights waivers are less present lie in the strong collective dimension of the ideational framework that underpins German labour law.
{"title":"Nonwaivability of Labour Rights, Individual Waivers and the Emancipatory Function of Labour Law","authors":"Vladimir Bogoeski","doi":"10.1093/indlaw/dwac020","DOIUrl":"https://doi.org/10.1093/indlaw/dwac020","url":null,"abstract":"\u0000 This paper intervenes in ongoing discussions on emerging legislation and jurisprudence across jurisdictions offering employees the possibility to renounce established labour rights through individual labour rights waivers. Building on discussions about consent and coercion in the employment relationship, the paper argues that individual labour rights waivers in most cases undermine labour law’s overall emancipatory potential, as they reverse the decommodifying effects of nonwaivable labour rights by re-appropriating the capitalist market logic that those very rights seek to offset. The paper’s intervention is twofold. It first develops the argument about the emancipatory function of labour law, and uses it to examine the negative effects of individual waivers on labour law’s capacity to emancipate working people and society at large. Second, the paper introduces a jurisdiction that until now has not been considered in the discussions on individual waivers, namely Germany. Although discussions on individual waivers in the scholarly discourse in Germany are marginal, the paper examines what current exceptions to nonwaivability might qualify as waivers, and argues that the reasons why individual labour rights waivers are less present lie in the strong collective dimension of the ideational framework that underpins German labour law.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"17 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87189671","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 influence of the EU over UK labour law, before and after Brexit. It compares the influence of the EU within the internal market with that under the UK–EU Trade and Cooperation Agreement (TCA) agreed in December 2020. It focuses both on the different mechanisms through which labour law standards may be enforced before and after Brexit, and, in particular, on the extent to which the internal market case law of the Court of Justice (CJEU) may be utilised by labour lawyers seeking to apply the ‘level playing field’ provisions of the TCA. Given the structure of the EU Treaties and the TCA, arguments for high labour standards within the EU and in trade agreements signed by the EU, are more likely to be successful not where they are based on autonomous social arguments, but instead where labour and trade law arguments are combined.
{"title":"The Influence of the EU on UK Labour Law—Before and After Brexit","authors":"P. Syrpis","doi":"10.1093/indlaw/dwac016","DOIUrl":"https://doi.org/10.1093/indlaw/dwac016","url":null,"abstract":"\u0000 This article examines the influence of the EU over UK labour law, before and after Brexit. It compares the influence of the EU within the internal market with that under the UK–EU Trade and Cooperation Agreement (TCA) agreed in December 2020. It focuses both on the different mechanisms through which labour law standards may be enforced before and after Brexit, and, in particular, on the extent to which the internal market case law of the Court of Justice (CJEU) may be utilised by labour lawyers seeking to apply the ‘level playing field’ provisions of the TCA. Given the structure of the EU Treaties and the TCA, arguments for high labour standards within the EU and in trade agreements signed by the EU, are more likely to be successful not where they are based on autonomous social arguments, but instead where labour and trade law arguments are combined.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"13 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87513341","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}
Shared parental leave made some maternity leave transferable in the UK. The aim was to improve the position of working parents, particularly mothers, by encouraging fathers to take on more of a caring role. It has been widely acknowledged that the legislation has failed to achieve this. This article considers whether the reasons for this failure are due to the specifics of the UK’s legislative scheme itself or the model of transferable maternity leave. Comparing the experience of other countries with transferable maternity leave shows that solving many of the issues with the UK legislation would not be enough to encourage fathers to care. Instead, such comparison shows that the model of transferable maternity leave can never be the most effective tool to encourage fathers to care because it will always prioritise mothers’ caring role.
{"title":"Shared Parental Leave: Can Transferable Maternity Leave Ever Encourage Fathers to Care?","authors":"Gemma Mitchell","doi":"10.1093/indlaw/dwac015","DOIUrl":"https://doi.org/10.1093/indlaw/dwac015","url":null,"abstract":"\u0000 Shared parental leave made some maternity leave transferable in the UK. The aim was to improve the position of working parents, particularly mothers, by encouraging fathers to take on more of a caring role. It has been widely acknowledged that the legislation has failed to achieve this. This article considers whether the reasons for this failure are due to the specifics of the UK’s legislative scheme itself or the model of transferable maternity leave. Comparing the experience of other countries with transferable maternity leave shows that solving many of the issues with the UK legislation would not be enough to encourage fathers to care. Instead, such comparison shows that the model of transferable maternity leave can never be the most effective tool to encourage fathers to care because it will always prioritise mothers’ caring role.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"72 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86341163","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":"Criminality at Work","authors":"S. Currie","doi":"10.1093/indlaw/dwac014","DOIUrl":"https://doi.org/10.1093/indlaw/dwac014","url":null,"abstract":"","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"48 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80598373","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}
Vulnerable migrant workers are generally very reluctant to take legal action to challenge exploitation given the many obstacles they face, and instances of such action are important to examine for their exceptionality. This article presents a case study of non-unionised Portuguese construction workers who engaged in a lengthy legal battle against their Portuguese employers for various forms of wage theft while they worked in Ireland. The aim of the article is to assess the extent to which their legal action was an effective form of collective action. To do so, we draw on industrial relations and law literature to explore the purposes of collective action and litigation and apply this understanding to assess the outcomes of the migrant workers’ legal cases. We find that the workers’ legal action was a partially effective form of collective action that sought to address the source of their discontent. The case study highlights the regulatory dilemmas that arise in an institutional environment where workers ability to engage in voluntarist forms of collective action is constrained and they seek to use the legal system as collective subjects.
{"title":"Migrant Workers and Wage Theft: Is Legal Action an Effective Form of Collective Action?","authors":"M. O'Sullivan, J. MacMahon","doi":"10.1093/indlaw/dwac013","DOIUrl":"https://doi.org/10.1093/indlaw/dwac013","url":null,"abstract":"\u0000 Vulnerable migrant workers are generally very reluctant to take legal action to challenge exploitation given the many obstacles they face, and instances of such action are important to examine for their exceptionality. This article presents a case study of non-unionised Portuguese construction workers who engaged in a lengthy legal battle against their Portuguese employers for various forms of wage theft while they worked in Ireland. The aim of the article is to assess the extent to which their legal action was an effective form of collective action. To do so, we draw on industrial relations and law literature to explore the purposes of collective action and litigation and apply this understanding to assess the outcomes of the migrant workers’ legal cases. We find that the workers’ legal action was a partially effective form of collective action that sought to address the source of their discontent. The case study highlights the regulatory dilemmas that arise in an institutional environment where workers ability to engage in voluntarist forms of collective action is constrained and they seek to use the legal system as collective subjects.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"118 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89403778","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":"Human Rights Unbound: A Theory of Extraterritoriality","authors":"Sandhya Drew","doi":"10.1093/indlaw/dwac012","DOIUrl":"https://doi.org/10.1093/indlaw/dwac012","url":null,"abstract":"","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"22 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87930487","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 paper is concerned with how precarious work in gendered production networks can be regulated to address distributional injustices—examining the regulation of homework in Thailand as a case study. The contribution of this paper is to empirically analyse these outcomes of the organisation and governance of production as gendered distributional injustices. The analytic extends the distributive analysis employed by Shamir by applying feminist global production network scholarship developed by scholars such as Anne Tallontire, Catherine Dolan, Sally Smith, Wilma Dunaway and Stephanie Barrientos. Our aim is to capture the complex ways in which distributional injustices are created in gendered production networks by examining both distributional asymmetries between homeworkers and other actors along the value chain (vertical dynamics), as well as the way that local gender relations shape the social undervaluation of women’s home-based work (horizontal dynamics). We draw on rich empirical research to describe these distributional asymmetries for homeworkers in the North-East of Thailand who repair faults in fishing net production for global markets. A handful of countries in the Economic South have reformed labour regulation to address capitalist innovation resulting in new models of production and accumulation. Thailand joined these ranks in 2010, but this has gone without notice in the comparative labour regulation literature. We interrogate the extent that the gendered distributional injustices we identify are corrected through the interventions of Thai labour regulation. We compare the Thai approach with International Labour Organisation Convention 177 (1996) Homework (referred to herein as the ILO Homework Convention or C177). We conclude by suggesting ways that the Thai approach could be strengthened, drawing in places on examples of labour regulation advances in other countries.
{"title":"Gendered Distributive Injustice in Production Networks: Implications for the Regulation of Precarious Work","authors":"Shelley Marshall, Kate Taylor, Sara Tödt","doi":"10.1093/indlaw/dwab039","DOIUrl":"https://doi.org/10.1093/indlaw/dwab039","url":null,"abstract":"This paper is concerned with how precarious work in gendered production networks can be regulated to address distributional injustices—examining the regulation of homework in Thailand as a case study. The contribution of this paper is to empirically analyse these outcomes of the organisation and governance of production as gendered distributional injustices. The analytic extends the distributive analysis employed by Shamir by applying feminist global production network scholarship developed by scholars such as Anne Tallontire, Catherine Dolan, Sally Smith, Wilma Dunaway and Stephanie Barrientos. Our aim is to capture the complex ways in which distributional injustices are created in gendered production networks by examining both distributional asymmetries between homeworkers and other actors along the value chain (vertical dynamics), as well as the way that local gender relations shape the social undervaluation of women’s home-based work (horizontal dynamics). We draw on rich empirical research to describe these distributional asymmetries for homeworkers in the North-East of Thailand who repair faults in fishing net production for global markets. A handful of countries in the Economic South have reformed labour regulation to address capitalist innovation resulting in new models of production and accumulation. Thailand joined these ranks in 2010, but this has gone without notice in the comparative labour regulation literature. We interrogate the extent that the gendered distributional injustices we identify are corrected through the interventions of Thai labour regulation. We compare the Thai approach with International Labour Organisation Convention 177 (1996) Homework (referred to herein as the ILO Homework Convention or C177). We conclude by suggesting ways that the Thai approach could be strengthened, drawing in places on examples of labour regulation advances in other countries.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"1218 43","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138506276","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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