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ISSN: 0952-617X
ID: IJCL2007001

This paper describes the original paradigm of industrial relations, as developed in the United States in the early part of the twentieth century. The original paradigm had three faces: science-building, problem-solving, and ethical/ideological. It is argued that the core principle that spans and unites these three faces is rejection of the orthodox economic model of a competitive labour market. This proposition may also be stated as a rejection of the proposition that labour is a commodity. Building on this core principle is the fundamental theorem of industrial relations. It states that a free-market capitalist economic system cannot survive and efficiently perform without the practices and institutions of industrial relations that humanize, stabilize, professionalize, democratize and balance the employment relationship.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007002

Industrial relocation is one of the main concerns of industrial relations practitioners, policy-makers, union leaders and researchers in general. For many companies the critical choice is no longer between producing at home or abroad, but rather between cutting costs or losing market share. One of the ways to increase competitiveness is to move east. By facilitating company relocation, the Central and Eastern European countries are guaranteeing the future of companies facing competition in Germany, France, Italy, and other European countries. But relocation often involves the loss of jobs in the country of origin and job creation in the countries of destination as well as many changes in industrial relations practice of both sides. This paper focuses on the impact of the integration of eight former communist countries in the European Union in 2004. Data for 2004-2006 show that differences in terms of salaries and working conditions are related to changes in the industrial relations systems of Western Europe on the one hand, and Central and Eastern Europe on the other. The eastern countries are growing fast, but a high rate of unemployment has led to frustration and dissatisfaction in most of the new Member States. In the Western countries, to avoid further company relocation to the eastern countries, pressure has been exerted on employees to make deep concessions in terms of salaries, bonuses, working time and other labour conditions. The paper explores the future prospects for these developments, as well as their repercussions for other emerging nations.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007003

The engagement of ‘non-citizens’, ‘aliens’, and ‘undocumented workers’ for work raises a number of delicate employment law and policy issues. This paper considers the attitude of the courts in the United States (US) to the question of the rights of workers who work contrary to immigration laws (illegal workers)1 and will focus on the recent case law in relation to workers’ compensation entitlements. In the US the case law on the rights of illegal workers to workers’ compensation is unclear and heavily dependent upon local State legislation and judicial attitudes. It has also been heavily influenced by the Supreme Court decision of Hoffman Plastic Compounds v National Labor Relations Board, which dealt with the rights of undocumented workers to make claims for wages consequent upon unfair termination of the employment contract. This paper explores the different judicial and legislative approaches to the rights of illegal workers to workers’ compensation, and proposes a possible humanitarian response to the difficult problem of the injured illegal worker.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007004

The UK is one of a minority of older European Union Member States that chose not to restrict the ability of nationals from the eight Central and Eastern European countries, which acceded to the EU in 2004, from accessing its labour market. Relying on extracts from qualitative interviews with Polish migrants, this article reflects on the experience of post-accession EU8 migrant workers in the UK. In particular, it examines how UK law on the registration of migrant workers from the accession countries, and EU law on the recognition of qualifications, may be contributing to the initial occurrence of de-skilling whereby migrants’ skills and education are devalued in the host society. It seems that the emphasis in the UK placed on the ‘usefulness’ of such EU8 workers may be diverting attention from the occurrence of ‘brain waste’.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007005

This article provides justifications for ‘just cause’ laws that are constantly under attack in many European countries, while arguing that in some cases amendments might be necessary to ensure the possibility of swift, inexpensive dismissals when a just cause indeed exists. The security provided to employees by ‘just cause’ laws is justified on two main grounds: preventing unnecessary harm to the social/psychological well-being of workers who depend on a particular relationship for such purposes; and ensuring a fair ‘price’ in terms of security in return for workers’ submission to a democratically deficient regime. A number of considerations to the contrary – the impact on ‘outsiders’, potential inefficiencies and the infringement on employers’ autonomy – are discussed but shown to be rather insignificant in magnitude (with the exception of small employers who are indeed usually excluded from the scope of ‘just cause’ laws).

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007006

In this paper I contend that the EU Acquired Rights Directive, as interpreted by the European Court of Justice, has adverse effects on the market for outsourcing services. The Court should change its position on the decisive importance of either taking over personnel or taking over intangible assets, since the emphasis on those two factors is ‘counterintuitive’ to the social partners. The resulting legal uncertainty leads to legislation that is not in keeping with general notions of market competition, as the British TUPE Draft Revised Regulations prove. Instead of focusing on the sector in which a transfer takes place, more emphasis should be placed on the economic context in which transfers take place, especially those resulting from a mere change of service provider.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007007

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007008

This paper examines the emerging debate on workplace privacy regulation in Australia by reference to related developments in the United States, the United Kingdom and selected European countries. Exploring the theoretical underpinnings and practical outcomes of the different approaches, the authors argue that Australia should reject the market-friendly model exemplified by the United States approach and adopt the more comprehensive and integrated approach found in Europe.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007009

This article examines the problems and challenges arising from the protection of employees’ rights to privacy in the workplace in the information society. The use of information and communications technology in the workplace that allows data to be collected, stored, retrieved and processed in vast quantities and at great speed presents significant new opportunities and at the same time new threats to employers and employees, raising many questions about areas where interests and rights are in conflict and clear boundaries have to be drawn. The article deals specifically with the application of the law to cases of computer surveillance at work and to the collection and processing of employees’ personal data. An account is given of specific legal rules, where they exist, and general principles laid down in constitutions, treaties, international norms EU Directives, comparing, where relevant, the European and the US approach to these matters. The article also points out the threats to employees’ privacy and how to strike a balance between the rights, interests and expectations of the employer on the one hand with those of the employee on the other, with a view to protecting employee privacy as much as possible.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007010

This study examines the changing status and roles of the All China Federation of Trade Unions (ACFTU) in industrial disputes. It also examines unionization, union autonomy, workers’ organizations and their governance and unions’ prospects under the transitional economy. Although a consistency with past studies emerges from the findings, the extent and direction of change in Chinese industrial relations is revealed. It distinguishes trade unions at the enterprise from those at the higher level. Trade unions at the enterprise level are part of and represent the interests of the management of the enterprise. Trade unions at the higher level are subordinate to and part of the Party-state, and represent both workers and employers, acting as ‘messengers’ and ‘mediators’ in resolving labour disputes. Trade unions at enterprise level, as part of enterprise management, mediate between workers and management or suppress worker’s actions in labour disputes. Independent trade unions and collective bargaining appear to be unlikely to emerge in the near future of China in the current political framework.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007011

It is generally agreed that employee involvement is a key element in effective health and safety management, since employees are in the best position to understand and appreciate the risks and hazards in their own environment. Some advantages include the development of a positive health and safety culture, building trust between employees and management, reducing the number of accidents and work-related illnesses and improving business efficiency. Different approaches to worker involvement have been adopted in the various European Member States. The EU legal framework, which requires employee involvement at work, does not specify any particular model of participation. Thus, it is not surprising that countries have adopted models that are the most suitable in the context of their historical, cultural, political and legal development. The paper considers and analyses the approaches to worker involvement adopted by the EU and UK, providing some examples from other Member States. It also examines the perspectives of this issue by UK employers, employees and regulators.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007012

Until 1973 employees in New Zealand had only common law protection against wrongful dismissal and this protection was both limited and of little value other than to senior managers. From 1973 to 1991 there was statutory protection for those employees who were union members, against ‘unjustified dismissal’. From 1991 this statutory protection was amended to include all employees, including senior managers. At the same time the common law was changing to provide increased opportunities for damages. In 2000 the government removed all common law rights of action against wrongful dismissal, requiring all action to be made under statute.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007013

This paper analyses the reasons for the United Kingdom’s longdelayed response to the European Union’s Acquired Rights Directive. It assesses the British government’s overdue updating of the domestic legislation in 2006 in line with the latest version of the Directive, attributing its dilatory response to a combination of technical legal difficulties and conflicting political objectives. The paper concentrates on the ‘privatisation’ of public services, explaining the most recent protection now available to workers whose jobs are out-sourced to the private or voluntary sector. Member States contemplating reform of their own regulatory regimes may find the British experience instructive.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007014

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007015

This paper examines the implementation of the directives on the transfer of undertakings, in whole or in part, with particular regard to the impact of individual workers’ rights of legislative provisions in Italy, the UK, Germany and France. A further consideration is that of information and consultation rights of workers in the event of a transfer, and EU provisions in the case of insolvency. Reference is made to a number of landmark rulings of the European Court of Justice, and it is argued that in this matter there is a considerable degree of convergence between the various national systems.

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ISSN: 0952-617X
ID: IJCL2007016

In this article we examine some key areas giving rise to controversy in the application of EU Directive 2001/23/EC on the approximation of the laws of Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (the ‘Acquired Rights Directive’). In examining the case law and legislation of Member States we focus particularly on the case law and legislation of the United Kingdom and the Republic of Ireland, but case law and legislation of other EU Member States is referred to and compared where appropriate. We conclude that there are some common themes in the case law and legislation of the Member States on the Acquired Rights Directive. But we draw attention particularly to the legislation of the United Kingdom in the TUPE Regulations 2006, through which the UK has taken a bold step concerning the treatment of workers’ rights in relation to outsourcing from which, we suggest, lessons can be learned. We also argue the time is ripe for consideration whether share sale acquisitions should continue to be excluded from the Directive. The Acquired Rights Directive will shortly be reviewed by the European Commission and it is timely to review the practical application in Member States of the Acquired Rights Directive in their domestic case law and legislation.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007017

This article studies the law protecting workers during the merger or amalgamation of a company in India. It discusses the provisions of company law and labour law that operate in the area, with a discussion of case law on the point. The author finds that in light of the constitutional provisions in India, that favour protection of labour interests, the law is indeed inadequate and recommends the reform of corporate and labour legislation to provide for consultation requirements, participation of the workers and protection of their interests on transfer to the amalgamated company.

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ISSN: 0952-617X
ID: IJCL2007018

A common development among OECD and EU countries is the increase of temporary agency work in the last decade despite different regulatory regimes. For the researcher, agency work is an interesting topic as it is part of the romance of flexible working patterns, the new economy and a new type of employment arrangements; but is also part of a process that undermines employment conditions, collectivism and workers’ rights. Using Germany as an example of a country with a highly regulated temp industry and Australia as a country with very little regulation in this area, the paper outlines the growth and extent of agency employment in each country and examines the regulatory regime that applies in each country. The regulation of temporary agency work in Germany and Australia will be contrasted with the proposed legislation by the European Directive on temporary agency work in order to develop new proposals for an advanced supra-national regulatory approach on temporary agency work.

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ISSN: 0952-617X
ID: IJCL2007019

Increasingly, workers are demanding greater input into working conditions. Nowhere in the management/labour dynamic is this more evident than in the area of occupational health and safety, but standards vary significantly across the globe. The occupational health and safety regimes in Ontario, Canada, Sweden and the United States have been born out of radically different national, political and labour landscapes. This paper aims to describe how these competing visions have manifested themselves within their respective work environments and their effect upon the labour/management relationship. A unique feature of this paper is the utilization of the author’s personal professional experience within the occupational health and safety enforcement mechanism in Ontario, Canada. The personal anecdotal information informs the discussion of the competing enforcement mechanisms being employed in the comparator jurisdictions. Other areas of comparison include the varying degrees of responsibilities of workplace stakeholders, non-disciplinary mechanisms in the use and effects of organized labour upon the regimes. The unique external influence of European Union initiatives on Sweden’s regime is also discussed. Ultimately, the work is a discussion of workplace power dynamics within three very different safety regimes and was written with an eye to stimulating discussion in the ongoing dialogue on workplace safety.

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ISSN: 0952-617X
ID: IJCL2007020

With the convergence of civilian and military employment practices, the debate on whether ‘soldiers’ may be granted labour rights is highly controversial. In Europe, Euromil has made it their mission to have the right of freedom of association to join trade unions extended to military personnel. In South Africa, the Constitutional Court granted military personnel this right, as well as the right to collective bargaining (it appeared). As has been the case elsewhere, this has not been embraced by military leadership, who prefer to manage employee relations from a classically unitarist perspective. This article highlights why armed forces have such an issue with trade unions and collective bargaining. Specific reference is made to the unique South African experience and the various court cases over the right to collective bargaining. To place the level of discontent among soldiers in perspective, reference is made to some empirical findings of South African officers and to recent international examples. In the final section, the debate is placed in context and some lessons from the South African case are reflected upon.

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007021

Copyright © 2007 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2007022

This article introduces two of the core topics in the current debates concerning the European Employment Strategy (EES) that are likely to have a significant impact on the strategy’s future development. The first concerns the changing view of work and security, exemplified by the growing attention for ‘flexicurity’ and employment security. The second is the debate on the effectiveness of the EES in influencing Member State policies and performance. This article also serves as an introduction to this special issue, which approaches and discusses these two key debates in various ways.

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ISSN: 0952-617X
ID: IJCL2007023

This paper aims to capture the implications of the Lisbon Strategy (LS), and in particular the Open Method of Coordination (OMC), for the future of Social Europe (SE) at EU level in a diachronic perspective. To do so, three intellectual exercises will be carried out. In the first part I outline the contours of the LS, its aims, achievements, assessments and the reforms it has undergone. The second part presents what I consider to be the structuring meta-features and main characteristics of Social Europe at EU level over 50 years of functioning: 12 key features will be provided for a meta-level analysis. In the third part, I examine to what extent the LS in its social and employment dimensions and the various OMC processes are in line with these 12 key features: the idea is to point out which of these ‘traditional’ features are taken up and carried forward by the LS (a continuity scheme), and which are the features for which the LS differs from the previous approach, opening new routes for Social Europe (a discontinuity scheme).

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ISSN: 0952-617X
ID: IJCL2007024

The interplay between labour markets and welfare states is at the core of debates about the new Europe, which will be shaped as the result of the Lisbon process. Recently the concept of ‘flexicurity’ has moved to the centre of the discussion. Can interfaces between welfare states and labour markets be developed, where flexibility and security come together having ‘flexicurity’ as the outcome? How can flexicurity develop within different national employment systems? Can the design and implementation of flexicurity arrangements be guided by a set of common principles on flexicurity?

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ISSN: 0952-617X
ID: IJCL2007025

The paper examines recent changes in Italian employment policy in the light of the launch and development of the European Employment Strategy. The first section emphasizes some key quantitative aspects of employment and unemployment issues (§ 1), followed by an outline of the evolution of Italian labour market (§ 2), an exploration of the endogenous and exogenous pressures (and opportunities) for change and the dynamics of institutional change (§ 3), and a discussion of the possible new institutional configuration with particular reference to the most recent reform (the Biagi Law, that introduced further changes) (§ 4). Some final remarks (§ 5) on the current debate conclude the presentation of the Italian case.

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ISSN: 0952-617X
ID: IJCL2007026

In the last 15 years, impressive developments have take place in the labour market both in the EU and Central and Eastern European (CEE) countries. The shrinking of the labour force and declining rates of participation are common both to the old and new EU Member States, due to the sharp decline in labour demand and to specific demographic trends. Although situations vary in each CEE transition economy, there are some common characteristics. The remarkable fall in GDP at the beginning of the transition period, caused by privatization and restructuring, was accompanied by a sudden decline in employment. After an analysis of labour market developments and trends in the old and new EU Member States, this paper concentrates on the development of employment policies. The aim of new dynamic and innovative employment policies is rapid job-creation and solving the unemployment problem in flexible and challenging economic and labour market conditions.

As the effects of institutions and policies on labour market performance are country- and time-specific in CEE countries and Western Europe, a comparative cross-country analysis is presented. Dealing with dynamic employment policies in EU Member States, some positive examples are examined as the lessons and policy recommendations for future development in CEE countries. The conclusion of analysis is that only an integrated policy approach can solve the problem of structural unemployment caused by a mismatch between labour supply and demand.

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ISSN: 0952-617X
ID: IJCL2007027

The ambition of the Lisbon strategy is to make Europe the most competitive region in the world by 2010. Halfway into the ten-year strategy this ambition appeared to be unlikely to be achieved. In response, the Commission relaunched the strategy in 2005. The basic idea behind the relaunch is that EU competitiveness will be boosted by focusing on two policy instruments: flexibilization and modernization of the social policies of Member States. This paper offers a critical review of the strategy, arguing that the results of the revised strategy may turn out to be unsatisfactory, because of potential obstacles associated with these instruments. The conclusion is that a coherent flexicurity approach alone will not be sufficient, and that a more balanced approach to modernization should also be developed.

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ISSN: 0952-617X
ID: IJCL2007028