Sources of Labour Law - Lecture notes First Semester PDF

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Sources of Labour Law Introduction -

Which legislation – is there appropriate legislation? Contract of employment Percentage women earn in comparison to men on a global level – 77% underpaid for the same value of work Regulation of domestic workers – ILO Convention Child labour – is it regulated? Is domestic law in violation?

6 main categories of sources 1. 2. 3. 4. 5. 6.

Constitutions Statutory regulations – most used Contract of employment Collective agreements Case law International law – ILO sources and other international instruments, e.g. regulating human rights in general

1) Constitutions - National level - Social constitutionalism  Mexican constitution (1917) – first one including provision dealing with labour law – rather general, e.g. forced labour, relationship between men and women at work - Fundamental workers’ rights – equality, elimination of child labour, forced labour, right to strike  Freedom of association and collective bargaining = right to strike (S.23, Chapter II, South Africa)  Forced labour (South Africa)  Right to strike (Art.50, Bulgarian constitution)

2) Statutory regulations - National law - Laws - Secondary regulations  Decree and other regulatory orders  New Zealand: the “Hobbit law” – people working in the film industry  Estatuto de trabajadores  Renault Law and Rosetta Law – Belgium 3) Contract of Employment - Definition:

Agreement between an employer and an employee – typically voluntary, deliberate and legally enforceable = binding; employee must agree to this contract as a condition of his/ her employment; employment contracts cover a variety of procedures and/ or policies that are required for the employer to protect its own interest -

Employment relationship “for a certain period of times a person performs services for an under the direction of another person in return of which he receives remuneration” (Lawrie-Blum, Case 66/85)

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Examples:  Permanent (full time) contract (standard post-war employment relationship)  Atypical contracts (labour flexibility) – as from mid 1970s  Fixed-term contract (both full time and part-time) – Directive 1999/70/EC  Part-time contract (both permanent and fixed-term) – Directive 97/81/EC  Agency work (e.g. Tempo Team, Manpower, Randstad) – Directive 2008/104/EC

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Employee vs. self-employed – why is this distinction important?  Employees – within the scope of labour law = LABOR LAW PROTECTION  Self-employed – not within the scope of labour law – NO labour law protection (contract for civil or commercial services)

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Employee vs. self-employed – Subordination v independence?  Principle of “realities of working relationships”  Facts relating to the performance of work and the remuneration (ILO Recommendation, 198)  Different indicators (examples ILO Recommendation 198) ~ work carried out according to the instructions and under the control of another party ~ work must be carried out personally by the worker ~ work is carried out within specific working hours ~ periodic payment in remuneration ~ absence of financial risk for the worker

4) Collective agreement - Collective bargaining - Collective agreement “all agreement in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more representative workers’ organisations, or in the absence of such

organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other” (ILO Recommendation 91)  Social partners -

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Levels of collective bargaining  National level  EU level (see Regional Instruments part) Scope of application national collective agreements  Nation-wide  Regional scope (e.g. in federal state)  Industry/sector (e.g. chemical, textile industry)  Company (e.g. Shell) Legal effects Relationship with employment contract in certain states, collective agreements cover all employees

5) Case law - National tribunals  

International tribunals European Court of Justice (Viking, Laval and Rüffert) European Court of Human Rights (Lucia Dahlab v Switzerland)

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International administrative tribunals ILOAT UNDT and UNAT Administrative Tribunal of the Asian Development Bank

6) International law a) ILO Sources  Introduction  1919 – Treaty of Versailles  Specialized agency of the UN  187 Member States  Tripartite (governments, workers and employers’ representatives) 

Structure  International Labour Conference (international parliament for labour matters)  Governing body (executive – decide which are the main policies that will be adopted + budget)  International Labour Office (and Director General = leader of the International Labour Office) – secretariat making sure that ILC are working properly ~ make sure that whole machinery is running

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Sources

 ILO Constitution (and Declaration of Philadelphia, 1944) – setting out standards: “universal and lasting peace can be established only if it is based upon social justice” (Preamble)  International labour standards in ILO Conventions, Recommendations and Protocols  ILO Conventions – legally binding instruments; states can ratify them  ILO Recommendations – non-legally binding guidelines; no ratification; often linked to ILO Conventions

 International labor standards: on which issues? (8 fundamental conventions)  Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87)  Right to Organise and Collective Bargaining Convention, 1949 (No. 98)  Forced Labour Convention, 1930 (No. 29)  Abolition of Forced Labour Convention, 1957 (No.105)  Minimum Age Convention, 1973 (No. 138)  Worst Forms of Child Labour Convention, 1999 (No. 182)  Equal Remuneration Convention, 1951 (No.100)  Discrimination (Employment and Occupation) Convention, 1958 (No.111)  Soft law ~ Declarations  ILO Declaration on Fundamental Principles and Rights at Work (1998) – legally non-binding instrument; ILO’s position on globalization and workers’ rights; strengthen the universal application of core rights; important: p.2 of the Declaration  ILO Declaration on Social Justice for a fair globalization (2008)  Other ILO instruments: code of practice and guidelines  Case law (link with supervisory system)  Regular system: Committee of Experts on the Application of Conventions and Recommendations (case law)  Special procedures: Committee on Freedom of Association; Procedures for representations; Procedures for complaints 

4 main areas (8 fundamental ILO Conventions)  Freedom of Association and collective bargaining  Forced labour  Child labour  equality

but also governance (priority) Conventions; technical convention = in total: 189 ILO Conventions, 204 ILO Recommendations and 6 Protocols

b) UN Instruments  Universal Declaration of Human Rights – Freedom of Association: arts.20(1) and 23(4); Abolition of all forms of compulsory or forced labour: Art.4  International Covenant on Civil and Political Rights – Freedom of Association: Art.8 and 22; non-discrimination: Art. 2(1)  International Covenant on Economic, Social and Cultural Rights – right to strike: Art. 8 (1)(d); Abolition of all forms of compulsory or forced labour: Art. 6(1)  Conventions on the Rights of the Child – min. age(s) for admission in employment: Art.32(2)(a); use of children in the illicit production and trafficking of drugs: Art.33  Convention on the elimination of all forms of discrimination against women – discrimination against women in employment: Art.11; equal remuneration: Art.11(1)(d)  International Convention on the Protection of the Rights of all migrant workers and members of their families – prohibition of forced or compulsory labour: Art.11(2); freedom of association: Art.26(1)(b) c) Regional instruments  America: American Convention on Human Rights; Protocol of San Salvador  Africa: African Charter of Human and Peoples’ Rights  Arab countries: Arab Charter on Human Rights  Asia: ASEAN Human Rights Declaration 

Labour Law in the European Union  Supranational law  From common market to social dimension  Arts.157 (equal pay) and 45 TFEU (free movement of workers)  1970s: first EU legislation on labour matters  Community Charter of Fundamental Social Rights of Workers (1989)  Social Protocol Annexed to the Treaty of Maastricht (1992)  Treaty of Amsterdam (1997): Charter and Social Protocol  Charter of Fundamental Rights of the European Union (2001): now legally binding  European-wide framework agreements (see Collective Agreements at European Level)

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Labour Law within the Framework of the Council of Europe

 European Social Charter – right to collective bargaining: Art.6; right to equal opportunities and treatment in employment: Art. 20; right to information and consultation: Art. 21  Convention for the protection of human rights and fundamental freedoms – prohibition of forced or compulsory labour: Art. 4; right to privacy: Art.8; prohibition of discrimination: Art.14...