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European Labour Law Journal
Number of Followers: 17

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ISSN (Print) 2031-9525 - ISSN (Online) 2399-5556
Published by Sage Publications

[1174 journals]

Contribution to the study on the ‘right to disconnect’ from work. Are
France and Spain examples for other countries and EU law'
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  Authors: Loïc Lerouge, Francisco Trujillo Pons
  Abstract: European Labour Law Journal, Ahead of Print.
  France and Spain were pioneer countries in regulating the right to ‘disconnect from work’. Indeed, this right has been recognised in these countries since 2016 and 2017 within the framework of the right to privacy in respect to the use of digital devices in the workplace. In accordance with the law, employees are protected if they do not use their digital devices (computer, mobile phone, tablet, smart watch, etc.) during periods of rest, thereby, ensuring that their right to rest is enshrined within the regulations of their country; especially in light of the Working Time Directive 2003/88/EC. Therefore, from an analysis of French and Spanish legislation, the aim is to suggest pathways that could enable other countries to better regulate the right to disconnect, but also to develop EU law on the subject.
  Citation: European Labour Law Journal
  PubDate: 2022-06-15T05:27:58Z
  DOI: 10.1177/20319525221105102
Zero-hour contracts and labour law: An antithetical association'
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  Authors: Elise Dermine, Amaury Mechelynck
  Abstract: European Labour Law Journal, Ahead of Print.
  As an introduction to the special issue, this article provides a common definition of the phenomenon studied, i.e. zero-hour contracts, and sets out the research goals pursued through the successive contributions that compose it. Zero-hour contracts are long-term relationships where the employer does not commit to providing a minimum number of working hours to the worker. Legal scholars often state that zero-hour contracts are antithetical to the decommodification of work pursued by labour law. The special issue intends to explore this hypothesis through a legal doctrinal approach to European, international, and national labour law. First, it seeks to refine this hypothesis by examining, through three national case-studies, if (and how) national labour laws were designed to prevent zero-hour contracts and similar on-demand work arrangements. Second, taking the hypothesis seriously, it investigates whether there might be legal arguments in national labour laws and in European and international social law to oppose or to better protect zero-hour workers.
  Citation: European Labour Law Journal
  PubDate: 2022-06-09T09:55:28Z
  DOI: 10.1177/20319525221104164
Flexi-insecurity and the regulation of zero-hours work in the Netherlands
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  Authors: Anja Eleveld
  Abstract: European Labour Law Journal, Ahead of Print.
  
  Citation: European Labour Law Journal
  PubDate: 2022-06-09T09:54:48Z
  DOI: 10.1177/20319525221104166
Regulating zero-hour contracts in Belgium: From a defensive to a
(too') supportive approach
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  Authors: Elise Dermine, Amaury Mechelynck
  Abstract: European Labour Law Journal, Ahead of Print.
  
  Citation: European Labour Law Journal
  PubDate: 2022-06-09T09:53:49Z
  DOI: 10.1177/20319525221104167
Welfare-to-Work, zero-hours contracts and human rights
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  Authors: Virginia Mantouvalou
  Abstract: European Labour Law Journal, Ahead of Print.
  
  Citation: European Labour Law Journal
  PubDate: 2022-06-09T09:28:31Z
  DOI: 10.1177/20319525221104168
Broadening the comparator group in the context of discrimination based on
disability
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  Authors: Miriam Kullmann
  Abstract: European Labour Law Journal, Ahead of Print.
  Case C-16/19 VL/Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie ECLI:EU:C:2021:64. Provisions: Art 2(1), 2(2)(a) and (b) Directive 2000/78/EC
  Citation: European Labour Law Journal
  PubDate: 2022-06-07T05:19:19Z
  DOI: 10.1177/20319525221105101
Zero-hours contracts and English employment Law: Developments and
possibilities
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  Authors: Joe Atkinson
  Abstract: European Labour Law Journal, Ahead of Print.
  The UK has seen a dramatic growth in precarious work over recent decades, including the amorphous category of ‘zero-hours contracts’ which are often regarded as a paradigm example of an exploitative and insecure form of work. Although somewhat overshadowed by litigation and debates surrounding the gig-economy, the regulation of zero hours work continues to be a pressing issue in the UK, and important questions as to the rights that are, and should be, available to individuals with these contracts remain unanswered. This article sets out the detrimental effects that zero hours working arrangements have in the absence of adequate regulatory safeguards and argues that the orthodox treatment of zero hours contracts under English law, and the standard tools of employment law, fail to protect against these economic and social harms. The article then assesses the extent to which recent legislative and common law developments improve the position of zero hours workers, and whether existing legislation might be creatively applied to better protect these individuals. While current statutory frameworks, including reforms and legislation aimed at regulating atypical work, fall short of adequately protecting zero hours workers, the ‘purposive approach’ to employment status developed by the Supreme Court in Uber makes it considerably easier for zero hours contracts to be brought within the protective scope of employment law. It is argued that under this approach many individuals with supposedly ‘zero hours’ working arrangements should in fact now be regarded as employees with overarching contracts of employment. Despite the significance of this, however, it is ultimately concluded that further statutory intervention is necessary to effectively regulate zero hours work in the UK.
  Citation: European Labour Law Journal
  PubDate: 2022-06-03T07:55:34Z
  DOI: 10.1177/20319525221104165
Corrigendum
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  Abstract: European Labour Law Journal, Ahead of Print.
  
  Citation: European Labour Law Journal
  PubDate: 2022-05-02T07:57:39Z
  DOI: 10.1177/20319525221097577
Introduction: The EU new economic governance, labour law and labour
lawyers
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  Authors: Marco Rocca
  First page: 141
  Abstract: European Labour Law Journal, Ahead of Print.
  The new economic governance of the European Union emerged as an important legacy of the Eurozone crisis. Although its suspension during the COVID-19 pandemic has somewhat reduced its visibility, the process of the European Semester remains as central as ever in coordinating socio-economic policies of Member States, notably through its link with the Recovery and Resilience Facility. Two of the most relevant tools of the EU Economic Governance, notably Memoranda of Understanding and Country Specific Recommendations, focus, to an important degree, on labour law reforms. As such, it is important to question the role which these instruments have played, and will potentially play in the future, for national systems of labour law as well as for the evolution of EU labour law itself. To do so, it is necessary to go beyond quantitative or macro approaches to the content of the prescriptions of these tools, in order to analyse their impact on specific labour law systems and national contexts. This will generate a better understating of the relevance of the EU economic governance for the field of labour law.
  Citation: European Labour Law Journal
  PubDate: 2022-04-18T01:51:21Z
  DOI: 10.1177/20319525221093487
Wage setting and wage moderation in Belgium: A never-ending and
already-old story in the wake of the ‘new European economic
governance’
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  Authors: Filip Dorssemont
  First page: 156
  Abstract: European Labour Law Journal, Ahead of Print.
  Wage setting can be defined as the procedures which determine the remuneration which needs to be paid to employees as the counterpart of their work. The ancillary relationship between wage moderation and the new economic governance has never been expressed as clearly as in the Europlus Pact. The new economic governance (NEG) of the European Union has fostered wage moderation. This approach to wage setting and wage moderation is analysed from the perspective of the freedom of collective bargaining as a fundamental right, and on the basis of a national case study (Belgium). In order to carry out this analysis, the national wage moderation policies adopted in Belgium prior to the era of the NEG need to be examined first. The recommendations addressed to Belgium to reform the wage-setting system will then be analysed, as well as the impact they had both in confirming the existing system of wage moderation and the attempts to strengthen the restrictions imposed on collective autonomy. In light of these findings, these restrictions of collective autonomy are assessed on the basis of the freedom of collective bargaining, understood as a fundamental right.
  Citation: European Labour Law Journal
  PubDate: 2022-04-18T09:19:34Z
  DOI: 10.1177/20319525221093488
EU Economic Governance and French Social Legislation
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  Authors: Konstantina Chatzilaou
  First page: 170
  Abstract: European Labour Law Journal, Ahead of Print.
  Unlike other EU Member States, France has not been the subject of strict financial surveillance under the infamous Memorandums of Understanding (MoU). Nevertheless, from the very beginning of the economic crisis, France has been under intense scrutiny by the European institutions, mainly within the framework of the European Semester and the Excessive Imbalance Procedure (EIP). This article analyses the impact of these financial surveillance mechanisms on the design of recent French reforms in the fields of labour law and employment policy, with a particular focus on three main issues: the sanctions attached to unjustified dismissals, relations between sectoral collective agreements and firm-level collective agreements and access to unemployment insurance benefits. The analysis suggests that, while the European Commission initially exerted significant pressure towards the implementation of large-scale legislative reforms in the social field, from 2017 onwards it has seemingly eased its pressure on the French government. Inversely, although France initially seemed to strictly conform to the European recommendations, since 2017, the government has gone further, thus engaging in a profound transformation of the French social model. It therefore seems that the most recent French legislative reforms reflect more a political choice than an actual legal obligation stemming from the instruments of the EU Economic Governance.
  Citation: European Labour Law Journal
  PubDate: 2022-04-11T02:08:20Z
  DOI: 10.1177/20319525221093504
The impact of the EU economic governance in Portugal
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  Authors: Catarina de Oliveira Carvalho, Ana Teresa Ribeiro
  First page: 193
  Abstract: European Labour Law Journal, Ahead of Print.
  This article discusses the main changes introduced to the Portuguese labour market following the adoption of the Memorandum of Understanding of 2011. The intent behind the Memorandum's demands was to reduce the costs related to employment contracts, to expand both internal and external flexibility, and to relaunch collective bargaining under a new and more decentralised framework. However, several measures ended up being at odds not only with the Portuguese Constitution, but also with ILO Conventions and the (Revised) European Social Charter. We address the changes to wage policies, working time, employment protection legislation, and collective bargaining, which gave way to a new ‘flexibility-oriented’ labour relations model, characterised by a global reduction of labour protection levels. We argue that not only were these measures unable to fix the problems of the Portuguese labour market, but they also had crippling effects on social rights in general and, most particularly, on workers’ rights. Moreover, despite the overcoming of the economic crisis, as well as the changes to the political scene, the most significant alterations were maintained. This demonstrates that bailout reforms leave their mark, particularly when they correspond to measures previously under discussion and when their implementation is supported by external pressures.
  Citation: European Labour Law Journal
  PubDate: 2022-04-25T05:38:09Z
  DOI: 10.1177/20319525221093505
A New Source for (EU) Labour Law'
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  Authors: Mélanie Schmitt, Marco Rocca
  First page: 214
  Abstract: European Labour Law Journal, Ahead of Print.
  Looking at the instruments of the EU economic governance (Memoranda of Understanding; Country Specific Recommendations) from the perspective of national labour law systems reveals wide differences in their impact. If it is possible to draw a direct link between the demands of a Memorandum and national labour law reforms, the picture is less clear for Country Specific Recommendations. Notably, different Member States show a different degree of ability to ‘resist’ these Recommendations, which appears to be based more on their coherence (or lack thereof) with national political preferences than on the specific situation of the given Member State when it comes to the corrective mechanisms of the EU economic governance. From the perspective of labour law, these instruments still show little in the way of a more ‘social’ approach. Taken together, these conclusions suggest that the instruments of the EU economic governance could hardly provide a productive contribution to the development and enforcement of EU labour law, risking, on the contrary, leading to its fragmentation due to their uneven impact across Member States.
  Citation: European Labour Law Journal
  PubDate: 2022-04-13T07:06:17Z
  DOI: 10.1177/20319525221093510
Can algorithmic recruitment systems lawfully utilise automated
decision-making in the EU'
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  Authors: Henni Parviainen
  First page: 225
  Abstract: European Labour Law Journal, Ahead of Print.
  Algorithmic recruitment systems are emerging in the EU job market. Such systems could technically rely on AI and automated decision-making, but it is unclear whether it is lawful. In addition to other rules, the ambiguously worded GDPR Article 22 regulates automated decision-making. It remains unresolved whether the main rule in GDPR Article 22(1) grants applicants a right not to be subject to automated decisions or prohibits employers from making automated decisions. Further, it appears undetermined as to what counts as automated decision-making under GDPR Article 22(1) and whether the GDPR Article 22(2) exceptions to the main rule apply in a recruitment context. This article examines the legal boundaries set by GDPR Article 22(1) and (2) on the use of automated decision-making in algorithmic recruitment systems. The aim is to clarify whether employers in the EU are allowed to use algorithmic recruitment systems with automated decision-making capabilities. The examination indicates that, even if deemed a prohibition, GDPR Article 22 does not completely disallow such systems. Instead, the analysis suggests that automated decision-making could be allowed for recruitment under the contractual necessity exception of Article 22(2)(a), for instance, in a case where it would be impossible to go through the abundance of applications by hand in a reasonable time and manner. However, the explicit consent exception of Article 22(2)(c) would only apply in an extremely limited number of recruitment cases, if ever. Consequently, it seems that regardless of the rather strict legal boundaries, algorithmic recruitment systems could utilise automated decision-making in certain limited cases and after diligent assessments. Automated decision-making could be worthwhile, for example, in mass scale recruitment processes which could not reasonably be handled without automation.
  Citation: European Labour Law Journal
  PubDate: 2022-04-26T06:58:00Z
  DOI: 10.1177/20319525221093815
The Effects of Neoliberalism in European Labour Law: The meaning of labour
and the need for a different constitutional compromise
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  Authors: Pierluigi Digennaro
  First page: 249
  Abstract: European Labour Law Journal, Ahead of Print.
  This article aims to identify continuity between the main neoliberal schools that had a role in the making the European legal order and the conception of labour and 'work activity' embedded in the European legal framework. The consequences of this contiguity are also discussed. In particular, the concepts of 'working activity' and 'undertaking' elaborated by the Court of Justice are used as a driver of the analysis to detect signs of these influences. A two-phase approach is adopted to develop the research. First, a review is undertaken of relevant ECJ judgments that testify to the Court's position on the topics discussed in the article. Second, the cultural common ground between the interpretation of the legal framework found in case law and specific neoliberal theories is highlighted. The meta-principles that are identified through the analysis are then compared with those derived from the rights recognised in the constitutions proclaimed in the second half of the 20th century to show the significant discontinuity that endangers the very existence of the European Union as a political project and has destabilised the constitutional order of many European countries. As the founding principles of the EU legal order kickstarted a containment of labour and social rights, the call for change at the roots of European constitutional law is becoming increasingly urgent. The formal proclamation of the Charters of Fundamental Rights at the European level (not least because of the way in which rights are recognised) has not in itself proved to be capable per se of transcending the original matrix of the European order.
  Citation: European Labour Law Journal
  PubDate: 2022-04-13T07:06:51Z
  DOI: 10.1177/20319525221093716
European Minimum Wage: A Swedish perspective on EU’s competence in
social policy in the wake of the proposed Directive on adequate minimum
wages in the EU
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  Authors: Erik Sjödin
  First page: 273
  Abstract: European Labour Law Journal, Ahead of Print.
  The question of whether there can, may, and should be a lowest price for work performed by a human can be discussed from different perspectives. The President of the European Commission, Ursula von der Leyen, has unambiguously made it clear that the EU must take measures with regard to minimum wages. On October 28 2020, the Commission presented a proposal for a Directive on adequate minimum wages in the European Union.The article is structured as follows. It begins with a brief description of the history of the proposal and a short presentation of its material content. This is followed by a discussion of the chosen legal basis in the Treaty and of whether the EU has the competence to adopt the proposal. I shall then analyse how it can be determined whether Sweden has transferred competence to the EU to adopt legislation regarding minimum wages. The article concludes with some comments on future developments as a result of the proposal for a Directive on adequate minimum wage in the European Union.
  Citation: European Labour Law Journal
  PubDate: 2022-04-04T08:25:10Z
  DOI: 10.1177/20319525221090547
The social partners as actors in new labour law legislation in Sweden
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  Authors: Carin Ulander-Wänman
  First page: 292
  Abstract: European Labour Law Journal, Ahead of Print.
  This article focuses on the importance of the social partners in new labour law regulation where there is a weak parliamentary majority. The prevailing view in Sweden is that labour law regulation must be modernised as both companies and employees need improved opportunities in order to be able to adapt to changing conditions in the labour market. A Government inquiry and negotiations between the social partners in the private sector focused on these issues. The social partners reached two agreements: a Principle Agreement, including demands that the state provide new labour law regulation; and a Basic Agreement, which is a collective agreement about security, transition and employment protection. The Swedish Government decided to modernise the Swedish Employment Protection Act (LAS) in line with the social partners’ suggestions. The government proposal covers three important labour law areas: (1) changes to the Swedish Employment Protection Act; (2) new state-financed public support for skills development; and (3) a new public transition organisation to provide basic transition support for employees not covered by a collective agreement. This article shows that the social partners have great power over new legislation and can create stability in labour law regulation in Sweden for the future. The government’s proposal implies that new regulation has moved from the provision of employment protection depending on length of service to better transition conditions for employees, and that the state is to take financial responsibility for the lifelong learning of professionals.
  Citation: European Labour Law Journal
  PubDate: 2022-01-04T12:23:35Z
  DOI: 10.1177/20319525211068863
A critique of self-employment
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  Authors: Adalberto Perulli
  First page: 305
  Abstract: European Labour Law Journal, Ahead of Print.
  Self-employed work participates, like subordinate work, in the logic of the capitalist social system of production. The legal system has built a false notion of autonomous work, that is, ‘free’ from heteronomous constraints and conditions, which does not correspond to the reality of social relations of production. Through a rereading of Marx’s Trinitarian formula and of the Slave-Master relationship in Kojève’s reading, the author proposes a critical reading of autonomous work, and, in a Weberian perspective, hopes for a progressive liberation of autonomous work through the intellectual work of science and politics.
  Citation: European Labour Law Journal
  PubDate: 2022-04-12T07:40:43Z
  DOI: 10.1177/20319525221088604
Strike as an extraordinary circumstance
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  Authors: Wouter Verheyen, Pieter Pecinovsky
  First page: 323
  Abstract: European Labour Law Journal, Ahead of Print.
  In the Airhelp v SAS case (23 March 2021, C-28/20), the Court of Justice reconciled the interests of workers and passengers by stating that an announced strike by airline employees did not constitute an extraordinary circumstance in the sense of Article 5.3 Regulation 261/2004. This gave passengers a right to compensation and the Court safeguarded the right to strike in the event of a social dispute. The Court thereby invoked the right to collective action in Article 28 of the EU Charter of Fundamental Rights. This case law was also confirmed in the Eurowings ruling (6 October 2021, C 613/20) concerning a secondary strike.
  Citation: European Labour Law Journal
  PubDate: 2022-02-22T11:33:15Z
  DOI: 10.1177/20319525221076477