The article deals with the impact of the recent jurisprudence of the European Court of Human Rights (ECHR) on the German labour law practice. After a brief introduction of the general importance of the jurisprudence of the ECHR for the German labour law (I.), the authors illustrate the German and the ECHR’s jurisprudence on the duty of loyalty towards the ecclesiastic employer (II.) and whistle blowing (III.). Analysing this jurisprudence, the authors come to the conclusion that the ECHR approved the (...) principles of the German jurisprudence in these cases. Therefore, its impact on the practice will be rather marginal as it does not obtain such a far-reaching significance that a change in the jurisprudence regarding dismissals is to be expected. The judgements merely raised the awareness for the set of problems in the context of ecclesiastic employers and whistle blowing. In this regard, the article will try to provide the reader with basic directions on how to deal with this jurisprudence. Finally, the authors argue that concerns, the ECHR could evolve into a further instance reviewing all German judgements not only regarding the question if there is a violation of the Convention or not but regarding the correctness of the findings are unfounded. On the other side, the article addresses the problem that – apparently – applications have been declared admissible by the ECHR despite Art. 35 para. 1 of the European Convention on Human Rights because the final decision on the national level – dismissing the complaint as inadmissible – did not reveal the reason why the application did not succeed. (shrink)

The question of who is covered by labour law is highly contested and often debated. This article addresses several problems related to the coverage question, and employs some novel concepts as an aid to better understand and analyse these problems. It begins by explaining the different aspects of labour law coverage and how all the branches of government are involved in setting it. It is then argued that we are currently facing a major coverage crisis in labour law. The concepts (...) of universalism and selectivity, long used in the welfare state literature to describe possible methods for the delivery of benefits in terms of their coverage, are introduced and adapted to the labour law context. The article then proceeds to make several arguments by using this new framework. Firstly, a descriptive-historical argument: during the 20th century there was a development from selectivity to universalism in labour law, and then back to selectivity of a different kind . Secondly, a normative argument: a balance must be struck between universalism and selectivity. Several proposals are offered to assist in achieving a better balance compared to the current situation in many countries. Finally, a critical argument: some proposals to ‘expand’ labour law beyond the confines of the employment relationship are considered, showing the dangers of extreme universalism. (shrink)

The first book to explore the philosophical foundations of labour law in detail, including topics such as the meaning of work, the relationship between employee and employer, and the demands of justice in the workplace.

This Article contrasts two views of the relationship between the fields of work law and private law. The “internal” view, propounded by Hanoch Dagan, would bring work law into the domain of private law by recentering the latter, including property law, around liberal values of reciprocal respect for autonomy. The “external” view locates the law of work in an overlapping but distinct domain that we might call “social law,” where it operates as a set of externally imposed conditions on the (...) activity of employing others. When workers’ rights and interests come into conflict with those of owner-employers, the two views face off on the constitutional terrain of takings. In principle, the internal view might afford a better defense against takings challenges to laws that constrain property owners’ entitlements in the interest of those who work there, for it would redefine the former to reflect the latter. The external view relies more on takings law than property law to accommodate others’ interests when they conflict with traditional property rights. Unfortunately, the U.S. Supreme Court’s recent decision in Cedar Point Nurseries v. Hassid deals a heavy blow to both views. Its neo-Blackstonian conception of property rights rejects the notion that property law itself recognizes workers’ interests and entrenches that conception of property rights within the constitutional law of takings, sharpening the takings sword against social law’s regulation of property rights in the interest of others, including workers. Cedar Point thus underscores and magnifies the challenges that modern U.S. takings law, with its constitutional definition of property rights, poses to the advancement of workers’ rights, whether those are understood as internal or external to property law. (shrink)

The mismatch between goals and means is a major cause of crisis in labour law. The regulations that we use - the legal instruments and techniques - are no longer in sync with the goals they are supposed to advance. This mismatch leads to a problem of coverage, where many workers who need the protection of labour law are not covered by it, as well as a problem of obsoleteness, as labour laws are not sufficiently updated in light of (...) dramatic changes in the labour market. Adopting a purposive approach to interpretation and legislative reform, this volume addresses this crisis of mismatch. It first articulates the goals of labour law, both general and specific, through an in-depth normative discussion and a consideration of critiques. The book then proceeds to reconsider our means, asking what we need to change or improve in the laws themselves in order to better advance the goals. Some of the proposed solutions are at the level of judicial interpretation, others at the legislative level. The book offers several examples for the way a purposive analysis should be performed in concrete cases. It also recommends institutional structures that are suited to ongoing adaptation of the law to ensure that our goals are advanced even when circumstances frequently change. Finally, in response to the crisis of enforcement in this field, which frustrates the achievement of labour law's goals, several proposals to improve compliance and enforcement are considered. (shrink)

The Labour Code of the Republic of Lithuania was enacted on 4 June 2002. However, the practice of ten years has shown that even the systematisation of this branch of law by means of codification could not help avoiding gaps in labour law. The Lithuanian labour law system balances on the brink of flexibility, liberalisation and stability. The purpose of this article is to examine the legal side of this problem and to evaluate the quality of legal regulation of labour (...) relations, also to propose instruments and means to improve them. The main aim of the article is to show the difference between gaps in labour law and some similar (contiguous) legal phenomena that will also be discussed in the article. (shrink)

Labor law was traditionally a domestic project, defined on the basis of a geographic territory or a synthetic community; its norms were determined by the state and applied to employers and workers who resided within the state. Commonly, labor law is administered on a territorial basis, applies to incoming workers, and stops at the borders in respect of other states' sovereignty when capital migrates. Globalization affects the background in which labor law operates, including the increased interdependence of (...) markets, the constitution of communities that transcend national borders, and the development of institutions outside and within the nation-state, which displace the locus of regulation from the traditional state level. De-territoriality claims that territory and sovereignty should be understated within the dominion of labor law in order to correct a deep structural imbalance in labor markets. This imbalance was not created by globalization, and as long as it appeared in a consistent yet bounded manner in each and every state, labor law's project was rendered possible by territorial arrangements. With the process of globalization, the territorial solutions previously created within labor law are no longer adequate. When territoriality is adhered to, migrating workers receive partial protection, while migrating capital can easily choose its most convenient forum as a means, inter alia, of undermining labor law's protection to workers. De-territorialization seeks to restore the original intent of labor law's project, which is to level off the distinct strategies that are available to labor and capital in a globalized labor market. (shrink)

The problems of introduction of flexible work arrangements into Lithuanian labour law are analysed in the paper. Since 1990-ies Lithuania started making huge changes in its economy moving from planned (Soviet) to modern market economy. Together with these changes the employment relationship started to change as well. But after 20 years of development we still see a lack of modern view towards flexible work arrangements in labour laws. The problems of introduction of flexibility into Lithuanian employment relationship are discussed (...) with the retrospective view and explanations of arising obstacles for implementation. Rulings of the Supreme Court of Republic of Lithuania are given to reveal problems existing in practice. Conclusions and suggestions for the improvement of legal provisions are presented. (shrink)

Forty years ago Amartya Sen delivered his Tanner Lecture, 'Equality of What?', in which he introduced to the world a novel approach to the idea of equality by way of the notion of 'basic capability' as 'a morally relevant dimension'. We can now see with hindsight that Sen's argument - that we should focus upon equality of basic capabilities ('a person being able to do certain basic things') - launched what has become an academic armada now proceeding under the flag (...) of 'the capability approach'. While that flag has ventured far and wide and engaged many area of inquiry, this volume of essays is the first to explore how the capability approach (the CA) might shed light upon labour law. Three dimensions of the CA's potential for illuminating labour law are examined. Part I enquires into the nature of the basic relationship between CA and labour law - do they share common ground or disagree about what is important? Can the CA provide a normative 'foundation' for labour law? Part II goes further by examining the relationship of the CA and other well-established perspectives on labour law, including economics, history, critical theory, restorative justice, and human rights. Part III examines the possible relevance of the CA to a range of specific labour law issues, such as freedom of association, age discrimination in the workplace, trade, employment policy, and sweatshop goods. (shrink)

This Paper suggests that the answer to the question “what is domestic labor law for?”—commonly regarded as securing “justice against markets” or a justified tax on market activity—has informed the search for the answer for the question “what is international labor law for.” This is reflected in what this Paper refers to as P2, which provides that “the failure of any country to adopt humane conditions of labor is an obstacle in the way of other nations which (...) desire to improve the conditions in their own countries.” P2 envisions a “race to the bottom” by rational states trapped in a Prisoner’s Dilemma game. The author maintains that this cannot be the objective of ILO which cannot stop “the race” given its deficient enforcement mechanisms to ensure compliance. This Paper suggests an alternative raison d’etre for the ILO, which is called P1, namely social justice: “universal peace can only be established if it is based upon social justice.” P1 reflects what states actually seek to achieve. Following Sen, this Paper suggests that there is no tradeoff between social justice and economic efficiency. Therefore the promotion of labor rights by the ILO will contribute both to social justice and to economic success. Thus the ILO should promote international labor law so as to lead member states to pursue their self-interest which is consistent with the collective goal of humanity. (shrink)

The National Labor Relations Act of 1935 has been widely portrayed as an anachronistic piece of legislation that needs to be reformed or abandoned. In the absence of reform, many US labor unions try to avoid the NLRA process altogether by organizing workers outside the confines of the law. But Somos un Pueblo Unido, or “Somos,” a worker center in New Mexico, has been using a novel interpretation of the NLRA less to boost union density than to develop (...) an alternative to contract unionism. By helping nonunionized workers use Section 7 of the NLRA to act concertedly in their own defense, I argue, Somos is combating employer abuse, in the short run, and demonstrating that worker centers and their memberships may be transforming the US labor movement, in the long run. Their experiences illustrate the ability of organizations to redeploy existing institutional resources with potentially transformative results. (shrink)

The article describes the evolution of problems in the Lithuanian labour law and labour law science since the re-establishment of independence in 1990. Three periods of evolution are presented: the Soviet period (lasted until 1990), the transitional period (1990- 2004) and the period of the Labour Code (2003 and onwards). During the Soviet period, the Code of Labour Laws regulated employment relationship in strict detail as the main employer was the state itself. Good reflections of that period can be (...) pointed out: active (but forced) collective bargaining, single tariff system that implemented equal treatment in the field of remuneration for work and fluent performance of enforcement of labour laws (legal clarity). During the transitional period, new labour laws were introduced and tuned-up with international labour standards (ILO), but in general there were no essential changes in practice. During all that period, the Lithuanian Labour Code was drafted and came in force in 2003. The period of the new Labour Code started together with the European integration and had to bring new trends of the European labour market into Lithuanian practice. The government and academics brought few initiatives for the liberalisation of labour laws but most of them were stuck in the stage of consulting with social partners (Tripartite Council). Nevertheless, 22 years after the collapse of command economy labour laws incompatible with free labour market still dominate. It is obvious that the Lithuanian Labour Code is outdated and needs general reconstruction. Scientific researches and the EU Council recommendations call for the introduction of flexibility, implementation of flexicurity aiming for full integration into the single European labour market. Some strict labour code rules are prevented from functioning in practice. The courts are forced to derogate from disproportionate and improper articles of the Labour Code. The author brings some of the existing problems of labour law into light and proposes their possible solutions. The existing crisis of labour law could be solved by drafting a new Labour Code with the help of academic researchers and by introducing it directly to the Parliament for adoption. (shrink)

Under the Canadian labour laws that govern workplace safety, wage, and other work conditions, ‘family’ workers are not covered by the law under special rules for agriculture. Among other legal exclusions, the family farm exclusion contributes to a dearth of basic work, health, and safety standards in the sector, despite the commercialization and industrialization of family farming activities. Through a focus on Alberta, Canada—where farm labour rules have only applied to agriculture since 2016—this article explores the family exclusion in (...) relation to family farming experiences with work and risk, based on interviews with farm operators, their family members, and farm employees in Alberta. While some participants continued to press for exemptions for farms from labour rules under the rationale that there is intrinsic safety within families, the findings also reveal how other participants have begun questioning this rationale, despite their overall support for the family farm exemption in Alberta. Using the lens of legal geography and critical perspectives on the family, we argue that the family is a significant but under-examined dynamic in the legal regimes governing farm labour and agricultural safety and health. Together, the law and dominant narratives about family farming treat farm operations as hyper-private domains, where operators have disproportionate power to dispose of their own work and the work of others how they wish. These legal geographies of hyper-privacy contribute to the indecent work conditions that characterize farm labour systems in Alberta and other jurisdictions. (shrink)

Drawing on feminist labour law and political economy literature, I argue that it is crucial to interrogate the personal and territorial scope of labour. After discussing the “commodification” of care, global care chains, and body work, I claim that the territorial scope of labour law must be expanded beyond that nation state to include transnational processes. I use the idea of social reproduction both to illustrate and to examine some of the recurring regulatory dilemmas that plague labour markets. I argue (...) that unpaid care and domestic work performed in the household, typically by women, troubles the personal scope of labour law. I use the example of this specific type of personal service relation to illustrate my claim that the jurisdiction of labour law is historical and contingent, rather than conceptual and universal. I conclude by identifying some of the implications of redrawing the territorial and personal scope of labour law in light of feminist understandings of social reproduction. (shrink)

This paper provides an analysis of the complex global reproduction networks driving the rapidly expanding cross-border surrogacy industry in Asia’s reproductive bioeconomy. It sheds light on the unique features of informal surrogacy networks, notable for their flexible business ties and non-standardized surrogate mother recruitment. These factors contribute to heightened vulnerability for surrogate mothers operating within these networks. While previous literature has underscored the merits of labor law in regulating the surrogacy industry, its application in informal cross-border surrogacy remains under-examined. (...) To address this gap, this research delves into innovative labor law strategies with potential to better regulate the surrogacy sector. Drawing inspiration from progressive labor regulations and supply chain strategies in Bulgaria and Australia, the proposed model aims to redefine the traditional employment relationship. This shift is aimed at bolstering protection for surrogate mothers and enforcing accountability throughout the surrogacy business network. The model further advocates for a collective framework that fosters collaboration and mandates the documentation and registration of surrogacy contracts. Moreover, it underscores the critical significance of international collaboration in bridging regulatory gaps and distributing accountability across consumer and supply states. (shrink)

This comment on Brian Langille's article agrees with Langille's claim that inter-state competition should not be viewed as the main challenge to the global efforts to regulate labor rights. The comment suggests, however, that there is another type of competition that poses a challenge, namely a transnational competition which takes place among sub-state actors. Focusing on this "transnational conflict paradigm," the ILO has the tools to engage domestic constituencies in an effort to promote labor rights within the respective (...) member states. (shrink)

This manuscript offers a qualitative exploration aimed at proposing effective strategies for enhancing compliance with and enforcement of labor laws in Bangladesh by diminishing the incentives for non-compliance. The study relies on primary data obtained from statutes, legal decisions, and secondary data sourced from scholarly articles, books, and book chapters, among others. Employing a cost-benefit analysis approach from the employers’ perspective, the study contends that showcasing the superior costs associated with violating labor laws, in comparison to (...) the benefits gained, will incentivize employers to prioritize compliance to safeguard their interests. To this end, the research puts forth eight distinct techniques or mechanisms to curtail the benefits derived from disregarding labor laws. These strategies are thoughtfully organized into two categories, namely “increasing the likelihood of self-enforcement” and “supporting by other actors.” The proposed techniques for enhancing compliance with and enforcement of labor laws in Bangladesh hold significant potential in benefiting key stakeholders, policymakers, and practitioners in the field. Furthermore, the study’s findings carry valuable implications for other developing countries in the South Asian region, given their similar socio-economic and cultural contexts. (shrink)

In the past ten years, many European companies organised into subcontracting networks have decided to adopt codes of conduct to regulate labour relations and to ensure the respect of fundamental social rights. This paper first determines the context and the issues to be addressed by codes of conduct within networks of companies, and second analyses the terms under which they can be implemented. The paper argues that codes of conduct can complement the standards developed by States, the European Union or (...) the social partners, but that steps should be taken in order to avoid that these texts replace the existing labour law. (shrink)

This paper employs institutional theory as a theoretical lens and examines the role of status and peer influence on diversity following a change in European labour law in 1995. This change in European labour law, well-known as the Bosman ruling, significantly increased labour mobility in European soccer. The ruling lifted restrictions on the number of foreign players that soccer teams could recruit and eliminated compulsory transfer fees for players whose contracts had ended. We demonstrate that the Bosman ruling, while increasing (...) the number of foreign players on a team, did not uniformly affect all teams. Our investigation indicates that the increase in racio-ethnic diversity in teams depended on the status of teams and on peer influence (the behaviour of similar teams). This setting, though specific to European labour law in the context of soccer, allows an examination of the complex interplay between racio-ethnic diversity, status, and peer influence in a period of institutional change. (shrink)

In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account of autonomy (...) applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies. (shrink)

A vast amount of empirical research has been compiled on labor laws yet more is called for in view of the rapid changes occurring in this field. This article discusses the attempts to individualize the relationship, as well as make labor markets more flexible. A sociological perspective on the post-war situation viewed the industrial system as stable and self-adjusting. The article emphasizes the emergence of new data sources and methods and considers the role of theory in shaping (...) the empirical research agenda. Labor legislations only provide the structure within which collective bargaining would occur, while abstaining from directly influencing the outcome. This article reviews the state of the art on a number of substantive issues: the law governing collective labor relations; minimum wage laws; employment protection legislation; the operation of labor courts and alternative dispute resolution mechanisms; and the relationship between labor law and corporate governance systems. (shrink)

Mild and moderate mental illnesses can hinder labor force participation, lead to work interruptions, and hamper earning potential. Targeted interventions have proven effective at addressing these problems. But their potential depends on labor protections that enable people to take advantage of these interventions while keeping jobs and income.

Though most legal and labor historians have depicted an American labor movement that suffered from legal disabilities, American law has never denied organized labor's freedom of association. Quite the contrary, unions have always enjoyed at least some favoritism in the law, and this status provided the essential element to their success and power. But, even during the heyday of union power (1930–47), organized labor never succeeded in gaining all of the privileges that it sought, not enough (...) to stem its current (private-sector) decline back to historically normal levels. This article provides a synoptic overview and reinterpretation of the development of American labor law. (shrink)

By most measures, French labor is among the weakest in the industrialized world. Yet it has retained a high level of mobilizing and institutional power. This unusual position is partly due to the historical role of labor courts, one of France’s oldest and most influential labor institutions. Based on a range of historical and contemporary evidence, this article shows that the involvement of the state and labor in these courts over the past two centuries has played (...) a crucial role in the evolution of French industrial relations. This process unfolded along three main dimensions: the early establishment of labor courts strongly and durably influenced the mobilization patterns of the emergent labor movement, France’s labor relations model was largely inspired by the judicialism embedded in labor courts, and a combination of more contingent events led to the emergence of a problematic notion of union“representativeness.” These patterns have contributed to shape French labor into its present condition of both weakness and strength. (shrink)

From the perspective of Marek J. Siemek’s theory of modernity, one of the most important problem is to include conflicts into institutional framework of the modern society. He reinterprets Hegel’s dialectics of the struggle for recognition by conceptual tools of Hobbes and Marx in order to uncover hidden assumptions and conditions of possibility of the social rationality. For Siemek, law as purely formal, autopoetic social system or social subject, which produces individual subjects, is the first of the conditions of possibility (...) of modernity. The second one is the convergence of formal and material presuppositions of law—or, speaking generally—the convergence of form and content of the social reason. Form and content, facticity and normativity, instrumentality and communicativity are aspects of the process of rationalization andof the only one reason, self-generating in the history. So for Siemek, the Hegelian model of the struggle for recognition gains its theoretical power only when it is interpreted from the perspective of economical, technical and legal rationalization of modernity. Only such perspective is able to construct “the transcendental social philosophy” which starts from critique of “the non-instrumental reason”. (shrink)