European Labour Law Journal最新文献

{"title":"Working time and autonomy: lessons for the new ways of working","authors":"Sara Huybrechts","doi":"10.1177/20319525231194268","DOIUrl":"https://doi.org/10.1177/20319525231194268","url":null,"abstract":"This article critically examines the relationship between autonomy and working time, with a focus on the new challenges in the world of work and explores whether traditional approaches can address new challenges. By comparing the situation of autonomous workers to known contexts, valuable lessons emerge. Autonomous work in this contribution is approached as work under subordination with at least one of three characteristics, namely, time independency, place independency (understood as autonomy in respect of hours and place of work) and autonomy in the performance of the work. The discussion covers issues such as the concept of working time, reconciling constant connectivity with rest periods, the scope of the Working Time Directive and the derogation of Article 17(1), as well as the obligation to measure working time. Comparative examples from Belgium, France, Finland and Italy provide useful and tangible insights into the application of the Working Time Directive. The article concludes that while old insights alone cannot address the specific issues faced by autonomous workers, they can guide the identification of suitable rules and regulations.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42389045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Autonomous Regulation of Work in the Gig Economy: The first collective bargaining agreement for riders in Sweden","authors":"Niklas Selberg","doi":"10.1177/20319525231178980","DOIUrl":"https://doi.org/10.1177/20319525231178980","url":null,"abstract":"The gigification of work has—in line with global trends—reached the highly-regulated Swedish labour market, with its high degree of both union density and coverage of collective bargaining agreements—and high labour costs. More and more gig workers are becoming union members, and in late January 2021 the first Swedish collective bargaining agreement (CBA) for food delivery platform workers (riders) was concluded between the Transport Workers’ Union and Foodora. The article illustrates to what extent, and how, the inherited formulas for trade union activity and collective bargaining are made relevant for platform-mediated work. The role of old actors and regulatory means are put to use in the ‘new’ labour market. This article provides an analysis of the first CBA in the Swedish gig economy and illustrates how pre-existing labour law norms are both a restraining and an enabling factor for trade unions and collective bargaining in the gig economy. What can be learned about the nature of work in the gig economy or platform-mediated work from the way it has been integrated into the Swedish model for labour relations with its particular traits? Or, what can be learned from the first CBA in the gig economy in the promised land of collective bargaining?","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42115759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"As clear as mud: Assessing the relationship between proposed pay transparency mechanisms and data protection obligations in EU law","authors":"Victoria E. Hooton, Henry Pearce","doi":"10.1177/20319525231178985","DOIUrl":"https://doi.org/10.1177/20319525231178985","url":null,"abstract":"This article considers the provisions of the EU's proposed pay transparency Directive and comments upon their potential for uncovering and rectifying pay imbalances. We note the necessity of pay transparency measures, for full realisation of the right to equal pay for equal work or work of equal value, given that information access inequality is usually present between employee and employer. Whilst many of the innovations in the proposed provisions are commendable and desirable, we see several obstacles to success in the drafting of the proposed articles. Specifically, regarding the most important transparency provisions—the requirement to report on gender pay gaps, and the right to request and receive comparator pay data—the ease with which concerns over a potential clash with data protection obligations has been dismissed is concerning. In light of the jurisprudence of the Court of Justice of the European Union on data protection obligations, and the fallibility of data anonymisation techniques, we predict a tension between these two sets of provisions that has not been entirely precluded by the drafting of the new pay transparency directive.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41604718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Participation of trade unions in corporate codetermination: Legitimisation, economic impacts and legal protection","authors":"Alexander Stöhr","doi":"10.1177/20319525231178992","DOIUrl":"https://doi.org/10.1177/20319525231178992","url":null,"abstract":"Corporate codetermination is one of the most controversial parts of labour law. This applies, in particular, to the participation of trade unions, which is notably permitted in Germany and Sweden. This article examines the legitimisation and economic impacts of union participation. Special attention will be given to the recent decision of the ECJ concerning the legal protection of trade union involvement in the course of a transformation into a European company (SE). The general aim of this article is to bring the various interests into appropriate balance.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41521446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How two wrongs may make a right, but four do not – The interesting case of Dutch employers’ liability","authors":"L. Visscher","doi":"10.1177/20319525231177451","DOIUrl":"https://doi.org/10.1177/20319525231177451","url":null,"abstract":"Dutch employers’ liability for workplace accidents is a very interesting topic, not only from a legal perspective, but also from a law and economics one. It is one of the few systems in Europe where liability is still based on the fault of the employer, whereas most countries apply a form of strict/no-fault liability or a system of no-fault insurance. It is interesting because the Dutch Civil Code explicitly refers to prevention of work-related losses. Law and economics focuses exactly on the behavioural incentives that are provided by tort liability, instead of on the compensation aspect. In this article, I provide an answer to the question of how Dutch employers’ liability compares to the law and economics desiderata. At first glance, the design of this type of liability (fault liability) is contrary to what law and economics would advocate (strict liability). In addition, the level of care that courts require from the employer seems to be excessively high. Interestingly, both characteristics together result in a situation which, from a law and economics perspective, is almost indistinguishable from the desired strict liability. So, two wrongs may make a right: the ‘wrong’ choice for fault liability combined with the ‘wrong’ level of due care results in the ‘right’ application of (quasi) strict liability. Therefore, at least in theory, employers receive the correct behavioural incentives, which induce them to take the optimal level of care and activity. However, when we subsequently turn our attention to employees, things look less perfect. Law and economics scholars argue that in situations where not only the tortfeasor but also the victim can influence accident probability, both parties should receive behavioural incentives. This implies that a rule of strict liability should be accompanied by a defence of contributory or comparative negligence. The Dutch employer liability regime contains a defence of intent or wilful recklessness on the part of the employee. From a law and economics perspective, this defence provides inadequate incentives to the employee, which is a third wrong. An often-heard response to this line of reasoning is that tort victims will receive behavioural incentives for fear of being involved in an accident in the first place, so the lack of a full defence of contributory or comparative negligence is not problematic. If this is true, then the damages the victims receive do not make them ‘whole’, which introduces a fourth wrong: uncompensated losses. This second set of two wrongs does not make a right, because if victims receive incomplete compensation, tortfeasors do not fully pay for the losses they have caused. This may reduce the behavioural incentives the tortfeasors receive, who may hence not choose optimal levels of care and activity after all.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44735646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contracted EU civil servants in EU common security and defence policy missions: Procedural routes to judicial remedies","authors":"G. Butler","doi":"10.1177/20319525231177001","DOIUrl":"https://doi.org/10.1177/20319525231177001","url":null,"abstract":"The right of judicial review for EU civil servants against their employer has historically been guaranteed by both EU primary law and EU secondary law. This has been through staff regulations having regard to Articles 270, 298, and 336 TFEU providing for judicial redress of employment disputes. However, an increasing number of EU civil servants fall outside the scope of such staff regulations, for example, contracted EU civil servants working for the EU's international missions in third states. These Common Security and Defence Policy (CSDP) missions employ thousands of people in different operational military and civilian capacities in the most dangerous regions of the world. There is a growing body of case law that has been developed at the Court of Justice of the European Union regarding access to justice for such staff, and how their employment-related disputes are to be adjudicated upon in the absence of staff regulations. This article probes the issue, and analyses the procedural difficulties, notably in terms of access to remedies, choice of applicable law, and the distinction between contractual and non-contractual issues, which such staff face. The article argues in favour of the introduction of specific staff regulations to cover contracted EU civil servants in CSDP missions, to ensure their procedural rights are protected, and that they have equal access to judicial protection.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66119700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ripple effect: A critical analysis of the successful development of the material scope of Directive 2000/78/EC in the context of age","authors":"Elaine Dewhurst","doi":"10.1177/20319525231177453","DOIUrl":"https://doi.org/10.1177/20319525231177453","url":null,"abstract":"This article analyses the material scope of Directive 2000/78 as it has been interpreted by the Court of Justice of the European Union (CJEU). From the outset, a very broad interpretation of the material scope provisions in Article 3 has been promulgated to ensure that the equality purposes of the Directive are met. The article analyses three particular areas of concern which have arisen in the age context, namely: access to employment, occupation and vocational training; employment conditions, including pay; and termination of employment and occupation. The article comes to three main conclusions in this regard. Firstly, when access is restricted, the CJEU will invariably find such a measure to fall within the scope of the Directive. Secondly, where conditions of employment, including in this context pay, are impacted in some way, the CJEU has been willing to stretch the boundaries of the scope of the Directive through the use of a contractual nexus approach. There are some red lines that the CJEU has been unwilling to cross, but these are rare. Finally, in the termination of employment, including dismissal and retirement, the CJEU has applied an access/exercise approach so as to adeptly include such measures within the scope of the Directive, despite textual challenges. The article then goes on to apply these principles set out by the CJEU in the context of some recent preliminary references. This application also provides support for the proposition that the material scope is a very broad one which can encompass a range of measures within its terms, and that the situations in which some measures fall outside the scope of the Directive are very limited.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135793070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transfer of undertakings and the right of objection from a Portuguese vantage point","authors":"Pedro Oliveira","doi":"10.1177/20319525231177452","DOIUrl":"https://doi.org/10.1177/20319525231177452","url":null,"abstract":"This article seeks to analyse the right of the employee to object to her employment contract being transferred to a new employer (transferee) under the framework of the transfer of undertakings. I will first address the terms, basis, and consequences of the right of objection in accordance with the Portuguese Labour law amendment of 2018. Subsequently, I will show how that right is already being divergently interpreted by the national courts. In conclusion, I will argue that despite the fact that the Portuguese final legal outcome restricted, or sought to restrict, the right of objection to the existence of motives to do so, and regardless of the intense debate in both the doctrine and jurisprudence around it, the social and legal benefits that are inherent to the model will not be outweighed. In fact, the legal enshrinement of the right of objection in Portugal has had a significant impact on the protection of fundamental employment rights.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43382239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The limitations of fixed-term contract regulation","authors":"N. Gundt","doi":"10.1177/20319525231172090","DOIUrl":"https://doi.org/10.1177/20319525231172090","url":null,"abstract":"This case note discusses the lack of remedies in case of an infringement of clause 5 of the Fixed-Term Work Directive 1999 and the dangers in cases where fixed-term work abuses can be traced back to discriminatory treatment. The analysis focuses on the availability of remedies in case of primary EU law being violated, but also on the limits of special treatment that an entreprise de tendance may claim for its employees.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43573880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To see, or Not to see: Online job advertisement and EU non-discrimination law","authors":"Elisabeth Greif, Tessa Grosz","doi":"10.1177/20319525231172089","DOIUrl":"https://doi.org/10.1177/20319525231172089","url":null,"abstract":"The recruitment process has largely moved online. Job advertisements which used to be bound to newspapers and other print media have become an online service as part of a growing trend towards a more digitalised hiring process. Alongside increased flexibility and cost-cutting, this trend brings so previously unseen challenges. The technology behind online job portals and social media allows job ads to be shown to targeted groups of people using machine learning techniques to filter through the available data and search for the most suitable audience. The correlations that are inferred by algorithms between content and audience, however, can lead to biased outcomes. This is a serious problem since the specific risk with online job ads is that jobseekers who are considered less suitable by the algorithm will not see the ad at all. Such a result effectively hinders access to the labour market and poses the risk of perpetuating existing biases and discrimination. Those discrimination risks raise questions about the legal framework of online job advertisements. This article examines the requirements of the new EU initiatives to regulate artificial intelligence and the digital market and EU non-discrimination law regarding online job advertisements. It also proposes a low-tech solution to the high-tech problems associated with online job advertisements by introducing a legal requirement to publicly tender job ads on an online noticeboard, thus ensuring transparency and effective access to employment.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49031395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}