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ISSN: 0952-617X
ID: IJCL2012001

Keywords:
Lisbon Strategy, EU 2020, trade unions, ETUC, neoliberalism, democratic deficit.

On 24 November 2009 the European Commission published its consultation paper on the EU 2020 strategy. This article analyses European trade union responses, and contrasts the very limited participation in the exercise with the greater response to the Green Paper Modernising Labour Law three years earlier. It argues that a key explanation is growing trade union disenchantment with the evolution of the 2000 Lisbon Strategy - embraced remarkably uncritically at the time - as it developed over the subsequent decade. In effect, the neoliberal implications of European integration have become increasingly unencumbered by any pretence at a 'social dimension'. It is far from clear that trade unions have as yet a strategy to respond to the far harsher European policy environment.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012002

Keywords:
Employment agency; temporary employment services; labour hire; Private Employment Agencies Convention; definition of employee.

South Africa is in the process of introducing new policies regarding the regulation of employment agencies. The International Labour Organization (ILO) has been concerned about the regulation of employment agencies since 1919. In South Africa, it is evident that workers placed by employment agencies are worse off than their counterparts who are directly employed by the employer. Should employment agencies be prohibited or should the industry be regulated? Towards the end of 2010, South Africa published amendments to its labour legislation that suggested that a ban be placed on employment agencies. The goals of this contribution are: to traverse the development of international standards in respect of employment agencies; to compare the regulation of employment agencies in South Africa and Namibia; and to determine whether the Private Employment Agencies Convention 1997 (No. 181) has played a meaningful role in influencing the current discourse in Southern Africa despite the fact that this convention has not been adopted. In this contribution, it is argued that a prohibition of employment agencies would contravene international standards. Even though the ILO convention dealing with employment agencies has not been adopted, it already had an influence on developments in Southern Africa. Arguments in favour of the banning of employment agencies have been placed on hold for the moment.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012003

Keywords:
Work-family reconciliation, gender stereotyping, sex discrimination, labor law, workplace-workforce mismatch, maternal wall discrimination.

Work-family reconciliation is an integral part of labour law as the result of two major demographic changes. The first is the rise of the two-earner family. The second is that, as Baby Boomers age, caring for elders has become a pressing concern for men as well as women. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract him from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for the workforce of 1960.

Labour lawyers in both Europe and the United States have developed legal strategies to reduce the work-family conflicts that arise from this mismatch. Yet the legal strategies developed in Europe are different from those used in the United States. The Europeans' focus is on public policy, based on a European political tradition of communal social supports - a tradition the United States lacks. Advocates in the United States, faced with the most family-hostile public policy in the developed world, have developed legal remedies based on the American political tradition of individualism, using anti-discrimination law to eliminate employment discrimination against mothers and other adults with caregiving responsibilities. This article explores both the social science documenting that motherhood is the strongest trigger for gender bias in the work place and the American cases addressing 'family responsibilities discrimination' (FRD).

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012004

Keywords:
Transnational migrant care workers, gender inequalities, women’s labour force participation, care and household services, remittances.

This article provides a critical analysis of the role of transnational migrant workers providing care and household services in an age of globalization. On the demand side, the feminization of migration is linked to the increase in women's labour force participation, falling birth rates, increasing life expectancy, changes in family structure, and the shortage of public care. On the supply side, it is argued that remittances are key for the survival of households and communities in a number of developing countries and that exporting workers is one means by which governments address the problems of unemployment and foreign debt. The concept of the global care chain serves to cast light on the social processes associated with the transnational transfer of domestic labour.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012005

Keywords:
Labour law curriculum; course design; teaching methods; comparative law.

Frequent changes in domestic labour legislation and policy and the pressures of globalization have created particular challenges for the teaching of the discipline of labour law. These challenges also present opportunities for refreshment of the labour law curriculum to inject a deeper appreciation of the fundamental principles underpinning the regulation of work and to introduce topics of relevance to the twenty-first century student. This paper reflects on those challenges and opportunities from an antipodean perspective.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012006

Keywords:
Doctoral research schools, funding crisis, labour relations, Executive Ph.D.s.

This paper provides an overview of recent trends in doctoral research programmes, with a particular focus on the Ph.D. programme in labour relations at the Marco Biagi Foundation at the University of Modena and Reggio Emilia. In the Italian context, in spite of a steady increase in the number of Universities, faculties and students, state funding has been subject to downward pressure in recent years, giving rise to the need to seek alternative sources of funding. Another significant environmental pressure examined in the paper is the emerging demand for applied research, resulting in a change in emphasis from philosophical programmes, with a focus on fundamental research, to professional programmes that provide greater scope for applied research, known in Italy as Executive Ph.D.s. Funding for such programmes may be allocated by private sector companies and public bodies, and at times the professionals taking part provide their own funding. In conclusion, the paper examines the methodological problem that the doctoral research school at the Marco Biagi Foundation has started to address in its own programme, making the transition to a multidisciplinary and interdisciplinary approach to the study of labour relations.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012007

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012008

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012009

Keywords:
industrial action, trade unions, democracy, balloting, UK,Australia.

In this article, we investigate legislative controls on the ability of workers and their organizations to take strike action, which raise fundamental questions relating to the application of democratic principles in a workplace setting. We trace the introduction of legislative provisions in Australia and the UK which sought to impose 'majoritarian' forms of democracy on trade union structures, by requiring ballots before such action could be taken. We recognize that these statutory pre-conditions are problematic both in terms of their aims and effects. Yet, what is arguably more worrying is the new institutionalization of deliberative pre-conditions for industrial action in the workplace. In Australia, this has taken the form of a requirement that a ballot applicant has 'genuinely tried to reach agreement', a requirement that continues to apply during any actual industrial action. In the UK context, the scope of protection from unfair dismissal (beyond a twelve-week period) will be affected by whether the union has complied with procedures established by an applicable collective or other agreement, offered or agreed to commence or resume negotiations, and has not unreasonably refused a request that conciliation or mediation services be used. In both countries, there seems to be growing pressure in policy terms for strikes to be very much a last resort, as statutory support for bargaining in good faith becomes stronger. We argue that these deliberative democratic controls of strike action are misguided. A richer understanding of deliberative democracy should, in our view, offer greater space for workers to voice their opposition in negotiations with employers.

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ISSN: 0952-617X
ID: IJCL2012010

Groups of migrant berry pickers arriving annually in Sweden from both Asia and the newer European Union Member States have been subject to exploitation over the years. The problem appears to persist in spite of public and international concern and successive regulatory reforms. An examination of this problem from a forced labour perspective suggests inadequate implementation and application of international norms in Swedish law, as well as deficiencies in the application of criminal-law and in regulatory oversight. Policy recommendations regarding the labour conditions for seasonal migrant workers in Sweden are put forward.

Lars Riberth, deputy rector, Bräcke, has tired of seeing how the berry pickers are mistreated, and started a financial collection. 'This is a form of modern slavery,' says Lars Riberth. (Kyrkans Tidning, 26 August 2010)

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012011

Keywords:
transnational temporary agency work; posting of workers; equal treatment principle

The EU Temporary Agency Work Directive establishes an equal pay/equal treatment principle for agency workers that lays down a specific standard of equality, different from the one applied under anti-discrimination law. The aim of this paper is to examine the meaning of this recent equality principle, especially for transnational agency workers. For this purpose the conciliation of the agency work directive with the Posting of Workers Directive (PWD), providing only a minimum level of employment conditions, is examined. In principle the agency directive appears to apply a more far-reaching standard of equality, allowing transnational agency workers to compare their contractual entitlements with what they would have been entitled to had they concluded an employment contract directly with the user undertaking. This seems to be the result of focusing primarily on the factual aspects of work: equal conditions should be provided for co-workers doing roughly the same work in the same place. The legal status of the actor concluding the relevant contract with the worker does not seem to be decisive in these triangular contractual relationships. But this standard will presumably not be applied on a regular basis as the directive allows for various exceptions. Stretched as widely as possible, those exceptions might have a significant impact on the equal treatment principle. The directive might then be rendered incapable of providing more than the minimum standard guaranteed by the posting directive. However, there remains a chance of avoiding this outcome. The exceptions enshrined in the agency directive contain a safeguard clause guaranteeing 'overall protection' of workers, that could be interpreted in such a way as to disallow any reversion to a mere minimum standard. This paper argues that it is necessary to follow this interpretation in order to maintain a meaningful level of protection.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012012

Keywords:
collective bargaining, decentralization, internal devaluation, wages in EU integration.

In the current financial and debt crisis, the joint EC-ECB-IMF Programmes for Greece directly impact on national industrial relations. They are an in vivo feasibility test for a process of internal devaluation in the Eurozone. They test attitudes towards the EU response to the crisis through European Union (EU)/ International Monetary Fund (IMF)-sanctioned deregulation of employment and collective bargaining rights at national level. This paper analyses how the joint EC-ECB-IMF Programmes for Greece recast the system towards highly decentralized collective bargaining, in what may initially appear to be 'a unique and exceptional' case. The paper examines how the radical changes introduced by the joint EC-ECB-IMF Programmes for Greece since 2010, that find their legal basis in the Excessive Deficit Procedures of the Treaty, denote future directions of European integration for national systems of industrial relations under the Euro Plus Pact (EPP). An assessment is made of the impact of European integration on national industrial relations, considering whether the long and painful process of internal devaluation in Greece will reshape societal attitudes towards the EU and the Eurozone, resulting in profound Euroscepticism.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012013

Keywords:
ability to cooperate, duty to cooperate, employability, social skills, EU employment policies, labour law

This article deals with the legal understanding of the demands in working life on employees' ability to cooperate. The concept of cooperation ability is here used in the sense of an ability to actively facilitate communication and foster relationships with colleagues and supervisors through flexibility and commitment, and thereby benefit the employer's business. Special attention is paid to the discourse on employability in the employment policies at the EU level, and on the understanding of cooperation as a field in which it is possible to possess and acquire specific skills. The main aim of the article is to survey and conceptualize the demands on employees' ability to cooperate in labour law, and to explore a number of important legal questions relating to employees' ability to cooperate. The purpose is primarily exploratory, in the sense that the article seeks to discern new and special problems confronting labour law as a result of the increased demand for employee's cooperation at work. To this end the article identifies three important issues: the legal implications of the fact that the employer is free to take the employee's ability to cooperate into consideration when making work-related decisions, the question of the extent to which the employment contract can be said to include a duty to cooperate, and the legal implications of the fact that employees are sometimes unable to cooperate due to external factors at work. These three issues provide the structural basis for the discussion, which, primarily with the use of examples from the Swedish setting, seeks to identify some key questions in labour law arising out of a legal development that involves an acceptance of stricter requirements on employees' ability to cooperate.

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ISSN: 0952-617X
ID: IJCL2012014

In the last two decades there has been a considerable amount of rhetoric about an alleged need to subvert established industrial relations systems for the sake of economic performance. Western Europe's Coordinated Market Economies (CMEs) have been the main target of debates centred on the question of whether a more liberal market economy is needed to increase wealth. Using the Netherlands as a case study, this paper tries to shed light on the need for change in the industrial relations systems of CMEs, and connects this discussion to the fundamental issue of innovation, a precondition for economic performance. We find that the Dutch industrial relations system does not hamper innovation and economic performance. However, while centralized and coordinated labour organizations (i.e., unions) cooperate with employers' associations and the government to respond to economic changes, their role in proactive, future-directed innovation calls for improvement.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012015

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012016

Keywords:
Cross–border collective action, fundamental social rights, economic freedoms, Monti II regulation, subsidiarity, dispute resolution

This article evaluates the recent (March 2012) legislative initiative by the European Commission for a regulation (known as Monti II) on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. The authors put forward a critique of the legal basis, content and form of the proposal, which has already been challenged by Parliaments in twelve Member States. The authors propose the adoption of a revised initiative that would make a clear commitment to international law and labour standards. It should recognize the autonomy of the social partners and a margin of manoeuvre for trade union action, foreseeing only limited judicial review in accordance with international practice. The proposed articles on dispute resolution and an alert mechanism should be deleted, and the appropriate form of the revised proposal could be based on guidelines adopted on the basis of Article 26(3) TFEU.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012017

Keywords:
EU citizenship; welfare state; social benefits; discrimination.

As the result of the case law of the Court of Justice of the European Union on EU citizenship provisions, even citizens who are not economically active have access to social benefits in a country other than that of origin. Is it justified to connect such effects to EU citizenship, even though EU citizenship does not yet have an identity of its own?

In this contribution the case law is analysed and it is argued that because of the objective justification that Member States can still offer for limiting access to their systems, more precisely by the link they may require between the claimant and their community, the case law fits well in the system for achieving the free movement of persons. This 'link approach' is a better explanation for the consistency of the case law than an explanation based on cross-border solidarity or a special identity relating to EU citizenship.

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ISSN: 0952-617X
ID: IJCL2012018

Keywords:
flexibility policy, Russian Labour Code, employment protection, Rostrud

Although the term 'flexicurity' is not used in the Russian context, the question arises as to whether all or some elements of this EU policy are applied in Russia. This article argues that widespread claims about the excessive 'rigidity' of Russian employment protection legislation are seriously exaggerated, and that existing legal mechanisms give employers sufficient flexibility to manage labour relations. At the same time, the 'security' element of flexicurity, in the sense of active labour market policies, lifelong learning and effective social dialogue, is not implemented in an effective way in Russia. However, the major employers' association of Russia promotes only deregulatory changes to labour legislation in the face of limited opposition by weak trade unions. It is argued that this situation is dangerous for Russian social development, especially in the current economic situation.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012019

Keywords:
Sexual harassment,Workplace, Education, Nigeria

Against the background of the newly promulgated law criminalizing sexual harassment in Nigerian workplaces and educational institutions, this paper examines the various theories and dimensions of sexual harassment, carrying out a comparative examination of approaches in different common law jurisdictions, including the US, Canada, South Africa and Ghana, and making recommendations to bring the law on sexual harassment into touch with the realities of the Nigerian socio-cultural environment.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012020

Keywords:
Italy, Multinationals, Global Economic Crisis, Collective Bargaining, Opt-out Clauses, Single-employer Model

This article analyses recent developments in the Italian industrial relations system resulting from the joint pressures exerted by the EU institutions and an Italian multinational, both advocating deregulation of the legal framework, with a move towards company-level regulation, and opt-out clauses in national collective agreements. It is argued that such pressures appear to be effective in shifting the balance of power between the players, overcoming resistance to a deregulatory and decentralizing approach. However, the demands of just one company, albeit a leading employer, cannot shape the legal system as a whole, but rather give rise to a multi-faceted model.

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ISSN: 0952-617X
ID: IJCL2012025

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012021

Keywords:
Canadian Charter of Rights and Freedoms, Freedom of Association, Compliance with International Obligations , International Labour Organization

The Canadian Charter of Rights and Freedoms was adopted in 1982, providing protection for freedom of association in Canada. However, in spite of Canada's membership of the International Labour Organization (ILO), the early interpretations of the Charter by the Supreme Court of Canada (SCC) resulted in a failure to comply with its international obligations on freedom of association, since the right to strike and to collective bargaining were excluded from the protection of the Charter. After a period of two decades during which the initial interpretation was applied, the issue of the scope of protection granted to freedom of association by the Canadian Charter arose once again. This resulted in important case law rulings upholding constitutional protection of the 'right to the process to collective bargaining' with an impact on the dialogue on freedom of association between Canada and the ILO. The present paper examines the most recent decision of the SCC on this issue, Fraser, in connection with the dialogue between Canada and the ILO. This decision limits the constitutional protection granted to the right to the process to collective bargaining. More precisely, the paper evaluates the impact of Fraser on the dialogue and on future compliance by Canada with its international obligations relating to freedom of association.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012022

Keywords:
Hours of Work, Gender, Poland, Working-Time Regime, Equality, Work-Family Reconciliation.

On 1 July 2009, the Anti-Crisis Act temporarily amended the working-time provisions of the Polish Labour Code to allow for more flexibility and more efficient deployment of labour during the economic downturn. Following a long-term trend in Polish labour law reform and taking its cue from the European Union (EU) Working Time Directive, one of the key changes the Act introduced was a provision allowing the extension of reference periods for the calculation of average weekly hours to a maximum of twelve months. Long reference periods have become a common feature of many European working-time regimes. As this paper argues, however, Polish specificities make this form of flexibility particularly problematic. In the context of Poland's entrenched overtime culture, insecure, competitive, and unequal labour market, and high level of employment law violations (mainly in connection with working time), the extension of working hours threatens to strain the already difficult working conditions for many Poles. With the existing gender dynamics, insufficient measures for work-family reconciliation, and scarce state provision for care of dependants, what effects will the extension of working time have on the conditions of women workers? This paper examines the post-transition trajectory of Polish working-time reform and questions the sustainability of the working-time regime it attempts to create.

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012023

Keywords:
Sweden, Employment Protection, Flexicurity, Economic Crisis, Dismissal, Redundancy, Collective Bargaining

In the wake of increasing globalization and economic and financial crisis, the balance between flexibility and security - flexicurity - is central to European employment policies and the modernization of EU labour law in the different Member States of the EU. Common principles of flexibility have been adopted, and different pathways to flexicurity have been outlined. The aim of this paper is to critically analyse developments in Swedish employment protection regulation, with a special focus on dismissals for reasons of redundancy, in light of the EU flexicurity discourse. The notions of employability and equal treatment come to the fore. Central research questions involve the design and content of employment protection regulation and employment protection and employability within collective bargaining and the industrial relations system. Attention is paid to recent changes and developments in legislation, case law and collective bargaining, and to whether employment protection is being deregulated. The paper integrates labour law and industrial relations approaches, and encompasses analyses of legal materials at different levels, as well as industrial relations aspects.

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ISSN: 0952-617X
ID: IJCL2012024

Keywords:
Enforcing Discrimination Law, Mutual learning between legal orders, Comparative Law, Labour Law, Mainstreaming, Italy and Britain

While substantive EU non-discrimination law has been harmonized in great detail, the enforcement regime for EU non-discrimination law consists merely of a few isolated elements. Thus, the pursuit of unity through harmonization in substantive EU law is accompanied by considerable regulatory autonomy for Member States in securing the efficiency of those laws, reflecting the diversity of national enforcement regimes, and resulting in twenty-seven different national models for enforcing discrimination law in labour markets. This article pursues two connected arguments through a comparison of rules for enforcing non-discrimination law in labour markets in Britain and Italy. First, it argues that enforcing non-discrimination law in labour markets is best achieved when responsive governance, repressive regulation and mainstreaming equality law are combined. Second, the article submits that diversity of national legal orders within the EU is not necessarily detrimental, as it offers opportunities for mutual learning across legal systems. The notion of mutual learning across systems is proposed in order to analyse the transnational migration of legal ideas within the EU. Such migration has been criticized in debates about the 'transplantation' of legal concepts or legal irritation through foreign legal ideas, in particular by comparative labour lawyers. However, EU harmonization policies in the field of non-discrimination law aim to impact on national labour laws. The article develops the notion of mutual learning across legal systems in order to establish conditions for transnational migration of legal ideas, and demonstrates the viability of these concepts by applying them to the field of non-discrimination law.

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ISSN: 0952-617X
ID: IJCL2012026

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012027

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012028

Copyright © 2012 Kluwer Law International
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ISSN: 0952-617X
ID: IJCL2012029