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'Editorial', Olga Rymkevich, Michele Tiraboschi, Issue 1, pp. 1–2 |
infoOlga Rymkevich, Michele Tiraboschi, 'Editorial' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 1–2 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011001 | 
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'Autonomy in European Social Dialogue', Marco Peruzzi, Issue 1, pp. 3–21 |
infoMarco Peruzzi, 'Autonomy in European Social Dialogue' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 3–21 | | This paper examines the meaning of 'autonomy' in European social dialogue, starting from the definition of social dialogue as adopted by the Commission and the social partners in various ways. In addition, the paper considers the applicability of collective autonomy parameters - as traditionally developed by labour law and industrial relations theory - especially after the amendments made by the Lisbon Treaty. Finally, the paper explores social dialogue as a governance model using the conceptual perspective of political science. The analysis leads to two main arguments: first, autonomy should be seen as a primarily procedural matter, related to the implementation of European collective bargaining outputs rather than to a real independence from institutions in managing negotiations. Second, autonomous agreements should be recognized as having relevance for the European legal system, even though defined as soft-law sources. In this regard, a comparison with the open method of coordination adds further meaning to autonomy in the context of European social dialogue. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011002 |
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'Deterrence and Enforcement of Occupational Health and Safety Law', Kevin Purse, Jillian Dorrian, Issue 1, pp. 23–39 |
infoKevin Purse, Jillian Dorrian, 'Deterrence and Enforcement of Occupational Health and Safety Law' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 23–39 | | Deterrence is a central consideration in the regulation of occupational health and safety (OHS) and has been the focus of increased empirical attention by regulators and researchers in recent decades. This article provides an evaluation of quantitative and qualitative studies that have sought to determine the deterrent effect of OHS enforcement on employer behaviour. The main findings are that enforcement does result in deterrence where sanctions are involved but not in the manner presumed by traditional deterrence theory, that the certainty of enforcement appears to be the most important component of deterrence, and that specific deterrence is greater than general deterrence. It is also apparent that there are many gaps in the understanding of the role played by enforcement in promoting compliance with OHS obligations and in reducing work-related injury. Apart from their implications for enforcement activity, these findings highlight the necessity for a fundamental re-conceptualization of deterrence theory. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011003 |
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'Labour Market Flexibility, Migration, and Inflexible Social Protection in the SADC Region', Elmarie Fourie, Nicola Smit, Issue 1, pp. 41–64 |
infoElmarie Fourie, Nicola Smit, 'Labour Market Flexibility, Migration, and Inflexible Social Protection in the SADC Region' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 41–64 | | This article considers the international and regional framework and the (in)flexibility of labour and social regulation, the lack of coordination, and the limited nature of exportability and portability arrangements in the Southern African Development Community (SADC). The focus is the social protection available to categories of non-citizen migrant workers in certain countries within the region. The development of a comprehensive social security system in SADC is challenging. Existing social protection measures are limited and unable to address the extreme poverty in the region. High unemployment and ineffective labour laws increase the difficulties in providing adequate protection and decent work to all. Multilateral and bilateral agreements are not commonly utilized. The article will also attempt to consider the way forward for researchers and policy makers alike. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011004 |
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'Impact of Labour Law on South Africa’s New Corporate Rescue Mechanism', Tronel Joubert, Stefan van Eck, David Burdette, Issue 1, pp. 65–84 |
infoTronel Joubert, Stefan van Eck, David Burdette, 'Impact of Labour Law on South Africa’s New Corporate Rescue Mechanism' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 65–84 | | South Africa's recently enacted Companies Act introduces a new corporate rescue mechanism known as 'business rescue'. One of the aims of corporate rescue is the resuscitation or reorganization of companies in financial distress. The legal disciplines of labour, insolvency, and corporate law interact during business rescue proceedings. In this contribution, the question is posed whether an appropriate balance has been struck between employees' and creditors' interests in this new corporate rescue mechanism. The investigation is conducted against the background of International Labour Organization (ILO) and European Union (EU) standards and South Africa's labour, insolvency, and corporate law frameworks. The conclusion is drawn that the potential success that this rescue mechanism has to offer could be weakened due to provisions that result in the over-protection of employees. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011005 |
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'Chilean Labour Law 1990–2010: Twenty Years of Both Flexibility and Protection', Sergio Gamonal, Issue 1, pp. 85–94 |
infoSergio Gamonal, 'Chilean Labour Law 1990–2010: Twenty Years of Both Flexibility and Protection' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 85–94 | | This article analyses the evolution of Chilean labour law in the twenty years since the return to democracy. It studies the principal amendments to the individual right to work and to labour procedures as well as the permanence of the collective ultra neoliberal rights inherited from the dictatorship, presenting a labour panorama characterized at the same time by protection and flexibility and reflecting the divisions in Chilean society. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011006 |
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'Performance-Related Pay and Employees Responses in the Chinese Education System', Binhua (Eva) Huang, Jie Shen, Issue 1, pp. 95–107 |
infoBinhua (Eva) Huang, Jie Shen, 'Performance-Related Pay and Employees Responses in the Chinese Education System' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 95–107 | | Human resource management in the Chinese public sector has been largely under-researched. This study explores performance-related pay (PRP) practices and employees' responses to these practices in the Chinese education system. It concludes that the PRP scheme has been widely implemented in China and has been well received by Chinese high school teachers in terms of improving employee performance. Chinese high school teachers highly regard PRP for three reasons: first, PRP, as 'prize money', is believed to increase employee income; second, itemized performance criteria help reduce subjectivity; and third, small differences in PRP between employees mitigate unhealthy competition. This study adds to the knowledge base of PRP in the public sector. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011007 |
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ISSUE 2 | |
'Editorial', William Bromwich, Olga Rymkevich, Issue 2, pp. 109–110 |
infoWilliam Bromwich, Olga Rymkevich, 'Editorial' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 109–110 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011008 |
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'Flexicurity Institutions and Labour Market Mobility', Tomas Berglund, Bengt Furåker, Issue 2, pp. 111–127 |
infoTomas Berglund, Bengt Furåker, 'Flexicurity Institutions and Labour Market Mobility' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 111–127 | | Advocates of flexicurity claim that flexibility and security in the labour market can be achieved by a combination of certain institutions: liberal Employment Protection Legislation (EPL), generous income protection, extensive Active Labour Market Policies (ALMPs), and good opportunities for Lifelong Learning (LLL). Such a mix of measures is assumed to lead to an efficiently functioning labour market, implying a win-win situation for both employers and employees. This article examines the relationship between flexicurity institutions and some forms of labour market mobility between employment and unemployment and between employment and inactivity in four Nordic countries, Denmark, Finland, Norway, and Sweden, in the period 2000-2006. With the most liberal EPL and generous measures for people without jobs, Denmark is closest to the flexicurity ideal. Controlling for various other factors, it turns out that the Danish labour market generally - but not in every respect - has the highest levels of mobility. Perhaps the most interesting exception is that the highly significant transition rate from unemployment to employment is higher in Norway. The explanatory value of flexicurity is, thus, limited and the assumptions regarding the effects of mutually reinforcing flexicurity institutions are called into question. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011009 |
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'Working Time, Work-Life Balance, and the Persistence of Inequality', Paul Blyton, Issue 2, pp. 129–138 |
infoPaul Blyton, 'Working Time, Work-Life Balance, and the Persistence of Inequality' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 129–138 | | Work-life balance provisions are recognized as playing an important role in increasing labour market participation rates in Europe. At the same time, changes in the collective regulation of working time over the past generation have substantially increased management's scope to shape working time patterns. One effect has been the increased use of individualized and variable work hours' arrangements. As a consequence, while many at higher levels within work organizations enjoy significant discretion over their work time and the positive benefit to work-life balance that this brings, many at lower levels have little control over a frequently variable and often unpredictable working pattern. Mitigating this differentiated experience of working time will be an important objective if work-life balance provisions are to play a major role in facilitating increased labour market participation rates in coming years. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011010 |
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'Trade Unions and New Member State Workers in Germany and the United Kingdom', Rebecca L. Zahn, Issue 2, pp. 139–164 |
infoRebecca L. Zahn, 'Trade Unions and New Member State Workers in Germany and the United Kingdom' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 139–164 | | This article compares German and British trade union responses in a European context following the European enlargements in 2004 and 2007 that are unprecedented in the history of the European Union (EU). In particular, this article examines two case studies to explore how trade unions have responded to increased migration following the enlargements. Increased migration has created a number of problems for trade unions that are examined in the case studies. The findings of the case studies are used to undertake a contextualized comparison of trade union behaviour in responding to the changing regulatory and opportunity structures that present themselves following the enlargements. Account is taken of the role that trade unions adopt within their national legal systems, as well as of the effects of the EU's policy of Europeanization on national trade unions. This article concludes by elaborating a number of recommendations based on the analysis. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011011 |
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'Does One Size Fit All? Trade Unions, Discrimination and Legal Regulation in the European Union', Sonia McKay, Issue 2, pp. 165–187 |
infoSonia McKay, 'Does One Size Fit All? Trade Unions, Discrimination and Legal Regulation in the European Union' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 165–187 | | It is argued that accessing decent work and employment is among the most effective ways of integrating people and encouraging social cohesion, and it was within this framework of understanding that, just over ten years ago, two Directives were passed: Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in accessing employment and while in work and Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.1 The Equality Directives do more than simply locate equality issues within the workplace. They also place a particular responsibility on Member States to promote social dialogue between the social partners, employers, and trade unions to work towards the promotion of equality. This article considers the extent to which the directives have been successful in this regard through an examination of initiatives taken by Europe's trade unions to foster equal treatment. Based on a study of 130 such trade union initiatives in thirty-four European countries, selected on the basis of their significance or degree of innovation in relation to their specific country contexts, the article examines whether and in what way the principles enshrined in the directives have impact on the practices of Europe's trade unions while also considering whether their histories, geographies, policies, and practices together with their contexts of operation make the promotion of equality in all of the areas covered by the directives a challenge too far. This also at least raises the question as to whether a single framework for legal regulation can operate as an effective tool for the promotion of equality, in particular, given the responsibility of trade unions to their members, who, in periods of economic crisis, may focus on job protection measures to the exclusion of other policies. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011012 |
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'The Medusa Stare: Surveillance and Monitoring of Employees and the Right to Privacy', Shelley Wallach, Issue 2, pp. 189–219 |
infoShelley Wallach, 'The Medusa Stare: Surveillance and Monitoring of Employees and the Right to Privacy' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 189–219 | | The nature and scope of modern technology poses a growing threat to employee privacy in the workplace and, as a result, presents new challenges and a greater need for clearer rules and boundaries for both actors in the workplace: the employer and the employee. This article focuses on various aspects of surveillance and monitoring of employees regarding the internet, e-mail, phone calls and location data. It examines the problems and conflict of interests that arise and outlines various legal responses in hard law and soft law, including legal rulings. Different approaches to these topics are presented, mainly the approach of the American legal system versus the European ones, and some examples of cases in various countries are considered. It is argued that by learning from each other and the various solutions adopted, we should strive to preserve, as far as possible, the employee's right to privacy. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011013 |
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'Regulatory Challenges of Domestic Work: The Case of Brazil', Ana Virgínia Moreira Gomes, Patrícia Tuma Martins Bertolin, Issue 2, pp. 221–236 |
infoAna Virgínia Moreira Gomes, Patrícia Tuma Martins Bertolin, 'Regulatory Challenges of Domestic Work: The Case of Brazil' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 2, pp. 221–236 | | The aim of this article is to undertake a critical analysis of Brazilian policy responses to domestic work. Our principal argument is that regulatory responses to the problems of domestic workers so far have not adequately addressed the realities of domestic work, such as those related to domestic work itself and those linked to the profile of domestic workers. Even though the current approach of harmonizing domestic workers' rights with other workers is seen by many as the strongest possible response, we argue that more innovative responses are needed in order to effectively address their specific problems. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011014 |
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ISSUE 3 | |
'Editorial', William Bromwich, Olga Rymkevich, Issue 3, pp. 237–238 |
infoWilliam Bromwich, Olga Rymkevich, 'Editorial' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 237–238 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011015 |
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'What’s the Point of Industrial Relations?', Linda Clarke, Eddy Donnelly, Richard Hyman, John Kelly, Sonia McKay, Sian Moore, Issue 3, pp. 239–253 |
infoLinda Clarke, Eddy Donnelly, Richard Hyman, John Kelly, Sonia McKay, Sian Moore, 'What’s the Point of Industrial Relations?' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 239–253 | | Keywords:
Industrial relations – British Universities Industrial Relations Association – University and College Union – democratic citizenship. What is the point of industrial relations? Research in the field has existed in Britain for well over a century, and university teaching in the subject dates back to the 1930s. Yet, in recent years, its relevance has been increasingly questioned by policymakers, with moves towards a form of 'disciplinary cleansing'. In this article, we demonstrate why the critical, cross-disciplinary, multilevel analysis that is of central importance to the industrial relations tradition remains both intellectually and ethically essential. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011016 |
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'Flexicurity Meets State Traditions', Guglielmo Meardi, Issue 3, pp. 255–269 |
infoGuglielmo Meardi, 'Flexicurity Meets State Traditions' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 255–269 | | Keywords:
flexicurity; labour market reforms; state traditions; European Employment Strategy; Germany; Italy. This article presents a theoretical and empirical discussion of the effects of the Europeanization of employment policies, arguing that the interaction with state traditions in industrial relations is a complex one, which may mediate or even distort European Union (EU) policies. State traditions do not imply strong path dependence nor coherence and immutability of national 'models', as theorized by dominant institutionalist approaches, but, as described by Crouch in 1993, influence the interactions between actors, who then mediate internationalization pressures. The European Employment Strategy (EES) confirms this. A quantitative analysis of employment policy indicators does not reveal significant distinctive convergence effects, and a qualitative analysis of the EU countries that have implemented the most far-reaching labour market changes ( Germany, Italy, and the new Member States) confirms the precedence of national over European politics, which tend to be characterized by the use of rhetorical tools for national actors. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011017 |
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'Cross-Border Trade Union Action in a Canadian Multinational Corporation', Reynald Bourque, Marc-Antonin Hennebert, Issue 3, pp. 271–286 |
infoReynald Bourque, Marc-Antonin Hennebert, 'Cross-Border Trade Union Action in a Canadian Multinational Corporation' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 271–286 | | Keywords:
Collective bargaining, international framework agreement, multinational corporation, cross-border trade union alliances. While collective bargaining processes centred on national actors remain the backbone of industrial relations systems, we see the emergence of new forms of collective bargaining within multinational corporations (MNCs), leading to the ratification of international framework agreements (IFAs). The growing importance of IFAs raises many questions regarding, first of all, the characteristics of the international trade union actions and negotiation processes leading to such agreements and also the relevant theoretical model for analysing them. In this regard, this article has a twofold objective: on an empirical level, to document a case involving a cross-border trade union alliance and the negotiation process, which led to one particular IFA, and, on a theoretical level, to evaluate, on the basis of this case study, the relevance of the classical theory of Walton and McKersie as a framework for analysing international collective bargaining processes. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011018 |
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'Mandatory Retirement and Age Discrimination under EU Law', Monika Schlachter, Issue 3, pp. 287–299 |
infoMonika Schlachter, 'Mandatory Retirement and Age Discrimination under EU Law' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 287–299 | | Keywords:
EU anti-discrimination law, Age discrimination, Mandatory retirement, Proportionality principle, Continuation of work at retirement age. In what direction has the prohibition of age discrimination been heading since the European Court of Justice (ECJ) ruled in Rosenbladt that there are almost no limits to the discretion of Member States in adopting mandatory retirement rules? This article argues that the general labour market policy of Member States will probably continue to be exempt from strict judicial scrutiny when long-standing features of employment law that are shared by many States are concerned. However, in the case of rules for specific occupations or specific age-related entitlements, the margin of discretion left to the Member States is narrowed down considerably. This article argues that there is a need to bridge the gap between the different control standards. Especially since the entry into force of the European Union (EU) Charter of Fundamental Rights, the interest of some employees to continue in employment and to pursue their chosen occupation needs to be balanced more evenly against the labour market policy of Member States. A suggestion about how to reconcile these interests is put forward. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011019 |
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'Increasing the Employment Rate of Older Workers', Issue 3, pp. 301–314 |
info'Increasing the Employment Rate of Older Workers' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 301–314 | | Keywords:
Europe 2020; older workers; age discrimination; employment rate; flexicurity. The Communication from the European Commission entitled 'Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth' includes the headline target of an employment rate of 75% of the population. This target employment rate is to be reached by, among others, increasing the involvement of older people in the work force and removing the obstacles to their employment. This article considers the employment rate of older workers, both from a historical and predictive standpoint. The makeup of the older European Union (EU) labour force and the types of work engaged in are discussed, with the United Kingdom and Italy as detailed examples. Initiatives at EU level are considered, including initiatives to tackle age discrimination at work and the call for more flexible labour markets. Consideration is then given to the United States as an example of a deregulated labour market. Trends in American older worker employment are examined. From this, the authors draw several lessons from the US experience and offer tentative conclusions about the way forward for the European labour market. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011020 |
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'Decent Work and Domestic Workers in South Africa', Letlhokwa George Mpedi, Nicola Smit, Issue 3, pp. 315–334 |
infoLetlhokwa George Mpedi, Nicola Smit, 'Decent Work and Domestic Workers in South Africa' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 3, pp. 315–334 | | Keywords:
Decent work, domestic workers, employment protection and social protection. The majority of domestic workers in South Africa are (black African) women. As long as women do not have the freedom to make their labour market choices, it cannot be said that they are empowered. Ideally, a move away from vulnerable employment into wage and salaried work would contribute towards the empowerment of women. However, the move from the agricultural sector to the services sector in private households hides the limited nature of women's empowerment. This article examines to what degree domestic workers in South Africa are afforded decent work institutionally. To this end, it considers four main challenges. First, the employment deficit: this means that people cannot find work or business opportunities in the formal economy. Second, the representational deficit: due to being unorganized, informal economy workers are excluded from (or under-represented in) social dialogue institutions and processes. Third, the rights deficit: workers' rights relating to freedom of association, collective bargaining, absence of forced labour, and discrimination are insufficient or non-existent. Fourth, the social protection deficit: clearly even though the workers in the domestic sector and informal economy are most in need of social protection, they are unable to access formal social protection schemes due to membership and contribution issues. It has been argued that when attempting to give meaning to the Decent Work Agenda, one may have regard to four strategic objectives, namely, promoting and realizing standards and fundamental principles and rights at work, creating opportunities for women (and men) to secure decent employment and income, enhancing the coverage and effectiveness of social protection for all, and strengthening tripartism and social dialogue. This paper analyses and critically evaluates how these strategic objectives have been pursued with respect to domestic workers and to what extent they have been achieved. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011021 |
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ISSUE 4 | |
'Editorial', William Bromwich, Olga Rymkevich, Issue 4, pp. 335–336 |
infoWilliam Bromwich, Olga Rymkevich, 'Editorial' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 335–336 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011022 |
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'Soft on the Inside, Hard on the Outside: An Analysis of the Legal Nature of New Forms of International Labour Law', M. Antonio García-Muñoz Alhambra, Beryl ter Haar, Attila Kun, Issue 4, pp. 337–363 |
infoM. Antonio García-Muñoz Alhambra, Beryl ter Haar, Attila Kun, 'Soft on the Inside, Hard on the Outside: An Analysis of the Legal Nature of New Forms of International Labour Law' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 337–363 | | Keywords:
Labour law, CSR, codes of conduct, international framework agreements, soft law, normative effect, features of law. With the internationalization of companies, labour issues, such as working conditions, have moved beyond the confines of national law and become subject to the transnational legal ambit. To regulate these issues, an increasing variety of instruments is used. Two fairly new instruments, in this respect, are unilateral codes of conduct that are concluded in the context of corporate social responsibility, and international framework agreements concluded by multinationals and global union federations. Both instruments are labelled as soft law since they are legally non-binding but are intended to generate normative effect. To gain a better understanding of the legal functioning of these instruments, this paper introduces an analytical framework that builds on the work in particular of Gamble, Abbott et al., Raustiala and d'Aspremont. The framework is comprised by three features of law: lawfulness, substance, and the structure to ensure compliance, with each feature divided into several elements. The analysis of the two instruments in this perspective based on a narrow and rather strict analysis within the framework suggests that the two instruments are very soft. However, based on a more reflective analysis, we find that both instruments are much harder on the outside than the (formal) inside suggests. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011023 |
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'Towards a Functioning Framework for Individual Labour Law Rights: Challenges for China in a Changing World of Work', Alan C. Neal, Issue 4, pp. 365–385 |
infoAlan C. Neal, 'Towards a Functioning Framework for Individual Labour Law Rights: Challenges for China in a Changing World of Work' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 365–385 | | Keywords:
People’s Republic of China; Labour Law; Labour Market; Labour Contract Law; Employment Promotion; Labour Disputes Resolution; ILO Decent Work Programme; All-China Federation of Trade Unions; Ministry of Human Resources and Social Security. This presentation considers progress towards establishment of a modern legislative framework for individual employment relations in China. A background of current labour market statistics and trends is provided, together with comment on perceived impacts for China of the global financial crisis since 2008. Recent enactments dealing with employment promotion, labour contracts, and labour dispute resolution are then considered. These are seen as a new phase in regulatory activity for the world of work since the foundation of the People's Republic in 1949. Particular challenges are identified in relation to effective delivery of employment rights, the administrative monitoring of enterprise compliance with labour regulations, and judicial efficiency in dealing with a rising volume of labour disputes throughout China. The influence of international standard-setting bodies upon the new enactments is noted, as are lessons drawn by the Chinese authorities from examination of experiences in other national systems. It is suggested that, without dramatic departure from the framework established by the 'umbrella' Labour Law of 1994, recent Chinese legislation reflects some sophisticated and innovative draughtsmanship, as well as sensitivity to the delicate balance between the economic interests of enterprises and the (generally protective) 'social dimension' of the world of work. Concern is expressed, however, as to whether China's available enforcement and sanctioning mechanisms will suffice to ensure that the new regulatory arrangements become effective in practice. Notably, there is a pressing need for capacity building in order to provide the administrative and judicial institutions necessary to ensure effective labour market regulation within a framework of rule of law. The need for a stable, well-regulated, yet flexible, labour market is seen as crucial to the continued success of the Chinese economy at a time of dramatic global flux. Cautious optimism is expressed as to the prospects of achieving those goals. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011024 |
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'Labour Law and Employment Policy in the EU: Conflict or Consensus?', Lisa Rodgers, Issue 4, pp. 387–405 |
infoLisa Rodgers, 'Labour Law and Employment Policy in the EU: Conflict or Consensus?' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 387–405 | | Keywords:
EU Council Directive 2000/78/EC, employment framework, flexicurity, Kükükdeveci v. Swedex Gmbh & Co. KG, Mangold v. Helm. This article considers the interaction between labour law and employment policy at European Union (EU) level in the light of recent political and legal developments. It begins with a consideration of the relationship between labour law and policy as a function of the political compromise at the foundation of the EU (i.e., its establishment on an economic rather than social basis). This article then discusses the application of the relationship between labour law and policy in terms of the policy provisions of Directive 2000/78 (derogation on 'employment policy grounds') as opposed to the policy provisions of the atypical work directives (the policy of 'flexicurity'). It considers these directives in the light of the recent development of case law in this area (e.g., Case C-555/07, Ku¨ku¨kdeveci v. Swedex Gmbh & Co. KG and its relationship to C-144/04, Mangold v. Helm ) and illustrates the difficulties of the inclusion of policy objectives within the law. This article then goes on to assess the future relationship between law and policy in the EU and particularly the potential impact of incorporation of the Charter of Fundamental Rights and Freedoms 2000 into the Lisbon Treaty on the development of labour law and policy. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011025 |
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'Labour Obligations in the US-Chile Free Agreement: The Illusion of Soft Law', Sergio Gamonal, Issue 4, pp. 407–417 |
infoSergio Gamonal, 'Labour Obligations in the US-Chile Free Agreement: The Illusion of Soft Law' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 407–417 | | Keywords:
Social clause, ILO Declaration on Fundamental Principles and Rights at Work, fundamental rights, social dumping, globalization, soft law and free trade agreements. This article focuses on the effects on labour of the United States-Chile Free Trade Agreement (FTA). The author makes a brief introductory reference to the origins of international labour law and the new developments in worker protection in times of globalization, highlighting the social clause, among other mechanisms. The social clause in Chapter 18 of the United States-Chile FTA is examined, basically identifying four types of standards: Labour commitments, labour obligations, cooperation, and procedures. Since labour commitments constitute soft law guidelines, their practical efficacy is equivalent to that of a policy statement. On the other hand, a breach of Labour Obligations can result in financial penalties for the offender. However, these Labour Obligations are limited to monitoring the enforcement of each Member State's existing labour laws. The social clause is, therefore, fairly sterile, and the author concludes that the worker protection mechanisms in this type of FTA are in need of reformulation. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011026 |
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'Informality, Employment Contracts, and Social Insurance Coverage: Rights-Based Perspectives in a Developing World Context', Marius Olivier, Issue 4, pp. 419–433 |
infoMarius Olivier, 'Informality, Employment Contracts, and Social Insurance Coverage: Rights-Based Perspectives in a Developing World Context' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 419–433 | | Keywords:
Social security for informal workers, informal economy and social security, informal sector and social security, extension of social security, social security international standards. This contribution critically reflects on rights-based perspectives in relation to the extension of social security, in particular social insurance coverage to those who work informally, with a focus on the developing world. It is argued that the traditional social security concept is insufficient in this regard, mainly as a result of its particular focus on formal employment-based social insurance, its emphasis on state-regulated and formal forms of social security, and a narrowly focused risk/benefit approach, which does not reflect the true needs and situation of those who work informally. Domestic (social security) legal systems, as is the case with international standards embedded in most of the International Labour Organization (ILO) instruments, have a primary focus on those in the formal economy, who work within the framework of an identifiable employment relationship. In addition, there appears to be little scope to apply employment contracts outside the framework of the traditional employment relationship to support coverage extension of social insurance arrangements. Alternative approaches to and opportunities for coverage extension are suggested. These include: adopting innovative conceptual approaches to extend coverage beyond those who work in terms of a contract of employment; using contractual tracking approaches and deeming measures; and deliberately widening the base of social insurance coverage through targeted accommodation of informal workers. Finally, it is argued that there is need for a strengthened rights-based framework, supported and informed by suitable international standards, regional norms, and constitutional prescriptions, to ensure that social security, in particular social insurance coverage, is extended to informal workers. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011027 |
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'List of Abbreviations', Issue 4, pp. 435–436 |
info'List of Abbreviations' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 435–436 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011028 |
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'Article Index', Issue 4, pp. 437–439 |
info'Article Index' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 437–439 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011029 |
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'Subject Index', Issue 4, pp. 441–452 |
info'Subject Index' (2011) 27 International Journal of Comparative Labour Law and Industrial Relations, Issue 4, pp. 441–452 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0952-617X
ID: IJCL2011030 |
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