European Labour Law Journal最新文献

{"title":"There and gone again? Migration to and posting of third-country nationals from Slovenia and Poland","authors":"S. Danaj, Mojca Vah Jevšnik, Marcin Kiełbasa, Monika Szaraniec","doi":"10.1177/20319525231165851","DOIUrl":"https://doi.org/10.1177/20319525231165851","url":null,"abstract":"Drawing on research conducted in the framework of the POSTING.STAT project for Slovenia and Poland, this article contributes to the literature on the posting of third-country nationals (TCNs) within the European Union from the perspective of the sending countries. Our research questions are: What are the current posting trends and patterns of mobility of TCNs from Poland and Slovenia? How do national legal and policy instruments in Poland and Slovenia shape the recruitment of TCNs and facilitate the posting of these TCNs to other Member States? We find that the recent growth in posting from both countries is driven by the substantial increase in the number of posted TCNs, which might signal at least their complementary role, if not the replacement, of posted nationals with TCNs to sustain the established business models of posting from Slovenia and Poland. We observe two trends. Firstly, national legal and policy instruments encourage labour migration from certain third countries with which Slovenia and Poland have historical ties and geographical proximity, which are then embedded in their national labour markets. Secondly, both countries remain source countries for the posting of workers, a pattern they have been able to sustain by increasing the use of TCNs for posting. Hence, despite a growing share of TCNs involved in posting, most TCNs continue to be based in Slovenia and Poland, suggesting posting or onward migration are not necessarily the main reason these workers go to Slovenia and Poland in the first place. Yet, the increase in numbers of posted TCNs observed in both countries, regardless of stricter regulations and the Covid-19 pandemic, suggests that posting in labour-intensive sectors such as road freight transport and construction is increasingly becoming a segmented labour market. We argue that the posting of TCNs might grow into an important intra-EU mobility channel, with the caveat that while certain EU countries will insist on restricting direct access to their national labour market for TCNs, other EU countries, especially those that so far have acted as labour or services suppliers, will lend themselves as gate-openers for the intra-EU mobility of TCNs.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"391 - 420"},"PeriodicalIF":0.7,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46529442","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":"Shall or not shall be: That is the question","authors":"Filip Dorssemont","doi":"10.1177/20319525231163446","DOIUrl":"https://doi.org/10.1177/20319525231163446","url":null,"abstract":"This contribution critically discusses the EPSU case of the Court of Justice of the European Union, delivered on 2 September 2021. It deals with the question of how to interpret Article 155 of the TFEU in relation to the scope of Article 155(2) TFEU, concluding that the European Commission has no obligation to propose a Directive to the Council implementing a collective agreement reached at European level.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"448 - 461"},"PeriodicalIF":0.7,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42488275","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":"Guest Editorial","authors":"Bernd Waas","doi":"10.1177/20319525221141611","DOIUrl":"https://doi.org/10.1177/20319525221141611","url":null,"abstract":"","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"3 - 3"},"PeriodicalIF":0.7,"publicationDate":"2023-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47216765","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 right to unionise in Poland after the amendment of the law on trade unions","authors":"Monika Latos-Miłkowska","doi":"10.1177/20319525221148129","DOIUrl":"https://doi.org/10.1177/20319525221148129","url":null,"abstract":"The change to the scope of the right to associate in trade unions is the most fundamental change that has taken place in Polish collective labour law in recent years. This article discusses the transformation of the scope of the right to unionise that was introduced by the amendment of the Trade Unions Act of 5 July 2018. For the sake of completeness, the genesis of the amendment will be briefly presented, in particular, the theses of the Constitutional Tribunal judgment of 2 June 2015 (K 1/13), which gave rise to this amendment and set its direction. I will then present the regulations currently in force in Polish law regarding the scope of unionising and will attempt to assess the effects of the changes introduced by the legislator in this respect.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"108 - 113"},"PeriodicalIF":0.7,"publicationDate":"2023-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45092629","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":"Inland water transport workers and the Posting of Workers Directive","authors":"Cécile Tournaye","doi":"10.1177/20319525221142235","DOIUrl":"https://doi.org/10.1177/20319525221142235","url":null,"abstract":"Inland Water Transport (IWT) workers within the EU represent a workforce of about 50,000, most of whom work across borders on a regular basis. The national labour law applicable to them is hard to determine under the current EU legal framework. In particular, the question of whether, and if so, when, IWT workers should be viewed as posted workers, within the meaning of the Posting of Workers Directive (PWD), remains unclear. This article aims to shed some light on the matter. It suggests that determining the national labour law applicable to them under the Rome I Regulation should be the priority. This would suppose that the meaning of the ‘habitual place of work’ be clarified for IWT workers. In order to do so, we claim that the usual pattern of operation in IWT should be taken into account. IWT is a river-based, rather than a country-based, activity. For this reason, we suggest a two-step process in determining the habitual place of work: first designate the river where IWT workers carry out their activity, then determine the law of the riparian State that is objectively applicable to their contract of employment. In our view, such an approach would suffice to fix most social dumping practices presently ongoing in IWT. It would also bring clarity and security to both workers and transport undertakings, without generating disproportionate additional administrative burdens for Member States or transport undertakings. The PWD would then marginally apply to IWT workers, covering cases that depart from the usual IWT patterns of operation, when it brings real benefits to IWT workers.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"48 - 72"},"PeriodicalIF":0.7,"publicationDate":"2022-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48289341","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":"Exceptional exceptions: The case of the Working Time Directive","authors":"C. Barnard","doi":"10.1177/20319525221141619","DOIUrl":"https://doi.org/10.1177/20319525221141619","url":null,"abstract":"The application of the Working Time Directive (WTD) 2003/88 has caused serious issues in those sectors needing 24 hours a day/seven days a week cover (24/7). Employers have explored whether they can take advantage of the opt-out from the 48-hour working week in Article 22 or rely on the range of derogations in the Directive. Of particular interest, however, is the use of the exceptions. These exceptions apply, for example, ‘where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict’ with the WTD. The interpretation of the provisions on exceptions has led to a number of important cases, cases which will be considered in the article. I wish to argue that, consistent with its earlier approach, the Court has maintained that the WTD will, in principle, apply to workers, even in those sectors requiring 24/7 cover. With this as its starting premise, the Court has then set the bar high for when it will accept that any of the exceptions will apply. The Court has even indicated, in the Slovenian Army case, that the Directive will apply to the military, much to the consternation of some Member States, albeit developing a new carve out for ‘military commitment’ activities. The Court also pays close attention to the text of the exceptions to ensure that employers are not misusing them. I will argue that the exceptions are indeed exceptional.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"4 - 20"},"PeriodicalIF":0.7,"publicationDate":"2022-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41942210","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":"Monitoring working time and Working Time Directive 2003/88/EC: A purposive approach","authors":"V. Leccese","doi":"10.1177/20319525221141621","DOIUrl":"https://doi.org/10.1177/20319525221141621","url":null,"abstract":"The Court of Justice of the European Union's (CJEU) decision of 14 May 2019 in Case C-55/18, CCOO represents an important milestone in the Court's case law on working time. This decision raises specific questions about the adequacy of national laws and offers interpreters an opportunity to reflect on certain challenges related to the measurement of working time. The aim of this contribution is to highlight the significance of the CJEU's decision and its implications for national legislative frameworks. After providing a brief analysis of the ruling, the article focuses on the following aspects: how to ensure that working time is accurately recorded for the purpose of enforcing the Working Time Directive, and in the light of lessons learnt from some national experiences (section 2); the usefulness of the obligation to measure working time within the context of the burden of proof in individual disputes (section 3); under which conditions Member States can take advantage of the leeway provided by the Court in the implementation of the principle of compulsory monitoring of working time, especially for activities for which working time is not measured and/or can be (pre)determined by the workers themselves (section 4); and the challenges posed by teleworking and agile work (section 5).","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 3","pages":"21 - 34"},"PeriodicalIF":0.7,"publicationDate":"2022-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41309026","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":"Defining working time versus rest time: An analysis of the recent CJEU case law on stand-by time","authors":"L. Mitrus","doi":"10.1177/20319525221141622","DOIUrl":"https://doi.org/10.1177/20319525221141622","url":null,"abstract":"The article explores the evolution of the CJEU jurisprudence following on from the Matzak case. It provides an analysis of the most recent judgments on stand-by time, including those in case C-344/19 Radiotelevizija Slovenija, case C-580/19 Stadt Offenbach am Main, case C-107/19 Dopravní podnik hl. m. Prahy, and case C-214/20 Dublin City Council. The disputes concerned workers on stand-by duty who were not required to be physically present at the location expressly designated by the employer, but were expected to resume work within a short or very short period of time if necessary. In order to classify stand-by periods as working time or rest periods under the Directive 2003/88, the CJEU analyses whether the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests. Moreover, the CJEU requires that employers cannot establish periods of stand-by time that are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of those periods being classified as rest periods. In the author's opinion, the required response time is a decisive and most important factor in the assessment. If the reaction period is very short, then in principle the stand-by time constitutes working time. Where the situation is not prima facie clear, additional secondary criteria should be taken into account. The factors that fall within the scope of an employer's managerial competences and pertain to an organisation's operational needs, and also the type of work performed by the worker, are relevant in assessing the legal characterisation of a particular stand-by period. The evaluation should not be affected by factors that remain beyond employer's control, e.g., the location of the workplace, the worker's residence, and distance between them.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"35 - 47"},"PeriodicalIF":0.7,"publicationDate":"2022-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41719052","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":"Between stakeholders and shareholders: Pension funds and labour solidarity in the age of sustainability","authors":"P. Tomassetti","doi":"10.1177/20319525221140422","DOIUrl":"https://doi.org/10.1177/20319525221140422","url":null,"abstract":"This article investigates the contribution of pension funds in harnessing the power of finance to achieve social and environmental objectives. After reviewing and discussing the potential and main hurdles to pension fund engagement in Socially Responsible Investment (SRI), the common law approach to shareholder activism is contrasted with the EU law on pension funds and on sustainability-related disclosures and taxonomies. Unlike the US and other common law jurisdictions, where the duties regarding retirement institutions are derived from trust law, EU rules on pension funds governance and investment policies are generally grounded on the more relaxed duties of corporate and financial law. On the one hand, this makes it easier for pension funds to consider the potential impact of environmental, social and governance factors (ESG) on investment decisions. On the other, social and environmental concerns are functionalised for economic purposes, thus reducing the possibilities for a more critical and strategical use of pension funds’ financial power by activists. This also explains why, despite being often participated in by trade unions, the existing governance of pension funds in Europe tends to outsource the management of investment policies to financial operators. While this takes responsibility away from the governing boards of pension funds in terms of their legal duties, the combination of decentralisation and the outsourcing of investment management undermines the possibility for unions to engage in shareholder activism, and to strike a balance between the position of workers as stakeholders and the position of workers as shareholders.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"14 1","pages":"73 - 91"},"PeriodicalIF":0.7,"publicationDate":"2022-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44850013","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":"Multiparty work relationships in Spain: Legal provisions and emerging trends","authors":"Iván Antonio RodríGuez Cardo, Diego Álvarez Alonso","doi":"10.1177/20319525221131174","DOIUrl":"https://doi.org/10.1177/20319525221131174","url":null,"abstract":"Multiparty work relationships have been gaining relevance in practice in recent years, particularly in the field of temporary agency work, subcontracting and platform work. There are other more specific forms of multiparty work relationships with long tradition in Spain, but they have not entailed major issues for labour law. Temporary agency work and subcontracting are the most common forms of multiparty work relationships, and there are legal rules for both of them that clarify the rights and duties of the parties involved. Platform work is an emerging reality, and a new legal provision on the matter has been recently approved, but it is still lacking a complete regulatory framework, which is problematic, because even the concept of worker/employee seems to be at issue. There is an increasing focus, among academic scholars, on multiparty work relationships or, in a broader sense, on the consequences of fragmented workplaces and business networks for the rights and duties of workers and employers. However, apart from the new legal provision on platform work, no new provisions have been developed in the area in recent years. This article provides a complete overview of multiparty work relationships in Spain, identifies the flaws of the regulatory framework and makes proposals for a future regulation.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"492 - 514"},"PeriodicalIF":0.7,"publicationDate":"2022-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45407526","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}