 Subjects -> LABOR UNIONS (Total: 27 journals)
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- The ripple effect: A critical analysis of the successful development of
the material scope of Directive 2000/78/EC in the context of age-
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Authors: Elaine Dewhurst
Abstract: European Labour Law Journal, Ahead of Print.
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.
Citation: European Labour Law Journal
PubDate: 2023-05-30T03:25:29Z
DOI: 10.1177/20319525231177453
- Transfer of undertakings and the right of objection from a Portuguese
vantage point-
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Authors: Pedro Oliveira
Abstract: European Labour Law Journal, Ahead of Print.
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.
Citation: European Labour Law Journal
PubDate: 2023-05-29T07:23:55Z
DOI: 10.1177/20319525231177452
- The limitations of fixed-term contract regulation
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Authors: Nicola Gundt
Abstract: European Labour Law Journal, Ahead of Print.
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.
Citation: European Labour Law Journal
PubDate: 2023-05-19T06:13:10Z
DOI: 10.1177/20319525231172090
- To see, or Not to see: Online job advertisement and EU non-discrimination
law-
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Authors: Elisabeth Greif, Tessa Grosz
Abstract: European Labour Law Journal, Ahead of Print.
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.
Citation: European Labour Law Journal
PubDate: 2023-05-19T06:12:40Z
DOI: 10.1177/20319525231172089
- Dismissal for objective reason of data protection officer between data
protection law and national legislation-
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Authors: Alessandra Ingrao
Abstract: European Labour Law Journal, Ahead of Print.
This contribution analyses the content and the relevance of the ruling of the Court of Justice of the European Union (CJEU) in the Leistritz AG/LH case which does not preclude national legislation from providing that a data controller (or a data processor) may terminate the employment contract of a data protection officer (DPO) only with just cause, even if the contractual termination is not related to the performance of that officer's tasks, in so far as such legislation does not undermine the achievement of the objectives of that regulation.
Citation: European Labour Law Journal
PubDate: 2023-05-18T05:39:22Z
DOI: 10.1177/20319525231172091
- Algorithmic management: Assessing the impacts of AI at work
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Authors: Aislinn Kelly-Lyth, Anna Thomas
Abstract: European Labour Law Journal, Ahead of Print.
Algorithmic outputs are increasingly shaping the employee experience, presenting a host of risks and impacts with far-reaching consequences. This contribution considers how algorithmic impact assessments should complement, as well as inform, an overarching ‘top-down’ framework for the governance of algorithmic management systems. While generalised obligations are crucial, identifying risk mitigations on a case-by-case basis can provide significant added value by (i) identifying and evaluating risks and impacts, and facilitating context-specific responses; (ii) striking a balance between generalised requirements and complete self-regulation; and (iii) ensuring that due regard to anticipated impacts and risk mitigation is built in from the design and development stages, through to deployment in the workplace. The criteria for an effective impact assessment obligation in the algorithmic management context are identified, including the appropriate stages, actors, and procedure. The Good Work Charter, which operates as a synthesis of legal principles, rights, and obligations, as well as ethical principles as they apply to the workplace, is proposed as an assessment framework. Finally, the article compares the proposed model with the existing obligation to carry out data protection impact assessments for high-risk data processing. The shortcomings of the latter obligation are explored, and a legislative approach to avoid duplication is proposed.
Citation: European Labour Law Journal
PubDate: 2023-05-10T07:21:53Z
DOI: 10.1177/20319525231167478
- From access to understanding: Collective data governance for workers
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Authors: Dan Calacci, Jake Stein
Abstract: European Labour Law Journal, Ahead of Print.
Regulating data collection and use in the workplace is now more a matter of regulating working conditions than data protection. This article argues that existing data protection law fails workers for precisely this reason. We examine how workers currently use data protection law, labour law, and technology to access and leverage the data they produce at work and identify key ways in which current regulation falls short. Existing regulations primarily aim to protect worker privacy, an approach that ignores the fact that data use now often defines the fundamental conditions of work, particularly in the gig economy. This is because a key limitation of modern data protection law for workers is its myopic focus on the individual ‘data subject’, whose rights to data stem from a right to privacy or data protection. Instead, data regulation in the workplace requires a framework that acknowledges the core interest workers have in accessing their data: to collectively exert greater agency and control at work. We argue that workplace data regulation should largely be a matter of workplace governance and worker co-determination, an approach rooted in workers’ rights, to negotiate the terms of their employment agreements and specific working environments.
Citation: European Labour Law Journal
PubDate: 2023-05-09T05:37:20Z
DOI: 10.1177/20319525231167981
- Collective regulation of algorithmic management
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Authors: Zoe Adams, Johanna Wenckebach
Abstract: European Labour Law Journal, Ahead of Print.
This article sets out the case for co-determination in the context of work, with a particular emphasis on why this is mandated in relation to algorithmically managed work and workplaces in particular. Having set out the theoretical case for collective regulation of algorithmic management that includes extensive rights of co-determination, focusing on the power relations implied by algorithmic management for this purpose, the article goes on to explore the current state of collective regulation of algorithmic management in the UK and in Germany. From here, it explores existing EU law mechanisms relating to algorithmic management, highlighting their limits and potential, and identifying how, and in what ways, the blueprint outlined by Adams-Prassl et al in this Special Issue might be further elaborated and improved. The article then presents certain proposals for how to establish conditions conducive to the introduction of co-determination in the EU, both generally and in relation to algorithmic technologies more specifically, while engaging critically with the potential and the limitations of legal, top-down—as opposed to bottom-up—mechanisms to achieve this end.
Citation: European Labour Law Journal
PubDate: 2023-05-03T02:07:09Z
DOI: 10.1177/20319525231167477
- Between risk mitigation and labour rights enforcement: Assessing the
transatlantic race to govern AI-driven decision-making through a
comparative lens-
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Authors: Antonio Aloisi, Valerio De Stefano
Abstract: European Labour Law Journal, Ahead of Print.
In this article, we provide an overview of efforts to regulate the various phases of the artificial intelligence (AI) life cycle. In doing so, we examine whether—and, if so, to what extent—highly fragmented legal frameworks are able to provide safeguards capable of preventing the dangers that stem from AI- and algorithm-driven organisational practices. We critically analyse related developments at the European Union (EU) level, namely the General Data Protection Regulation, the draft AI Regulation, and the proposal for a Directive on improving working conditions in platform work. We also consider bills and regulations proposed or adopted in the United States and Canada via a transatlantic comparative approach, underlining analogies and variations between EU and North American attitudes towards the risk assessment and management of AI systems. We aim to answer the following questions: Is the widely adopted risk-based approach fit for purpose' Is it consistent with the actual enforcement of fundamental rights at work, such as privacy, human dignity, equality and collective rights' To answer these questions, in section 2 we unpack the various, often ambiguous, facets of the notion(s) of ‘risk’—that is, the common denominator with the EU and North American legal instruments. Here, we determine that a scalable, decentralised framework is not appropriate for ensuring the enforcement of constitutional labour-related rights. In addition to presenting the key provisions of existing schemes in the EU and North America, in section 3 we disentangle the consistencies and tensions between the frameworks that regulate AI and constrain how it must be handled in specific contexts, such as work environments and platform-orchestrated arrangements. Paradoxically, the frenzied race to regulate AI-driven decision-making could exacerbate the current legal uncertainty and pave the way for regulatory arbitrage. Such a scenario would slow technological innovation and egregiously undermine labour rights. Thus, in section 4 we advocate for the adoption of a dedicated legal instrument at the supranational level to govern technologies that manage people in workplaces. Given the high stakes involved, we conclude by stressing the salience of a multi-stakeholder AI governance framework.
Citation: European Labour Law Journal
PubDate: 2023-04-27T05:02:36Z
DOI: 10.1177/20319525231167982
- Fortifying the algorithmic management provisions in the proposed Platform
Work Directive-
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Authors: Michael Veale, M Six Silberman, Reuben Binns
Abstract: European Labour Law Journal, Ahead of Print.
The European Commission proposed a Directive on Platform Work at the end of 2021. While much attention has been placed on its effort to address misclassification of the employed as self-employed, it also contains ambitious provisions for the regulation of the algorithmic management prevalent on these platforms. Overall, these provisions are well-drafted, yet they require extra scrutiny in light of the fierce lobbying and resistance they will likely encounter in the legislative process, in implementation and in enforcement. In this article, we place the proposal in its sociotechnical context, drawing upon wide cross-disciplinary scholarship to identify a range of tensions, potential misinterpretations, and perversions that should be pre-empted and guarded against at the earliest possible stage. These include improvements to ex ante and ex post algorithmic transparency; identifying and strengthening the standard against which human reviewers of algorithmic decisions review; anticipating challenges of representation and organising in complex platform contexts; creating realistic ambitions for digital worker communication channels; and accountably monitoring and evaluating impacts on workers while limiting data collection. We encourage legislators and regulators at both European and national levels to act to fortify these provisions in the negotiation of the Directive, its potential transposition, and in its enforcement.
Citation: European Labour Law Journal
PubDate: 2023-04-24T05:03:31Z
DOI: 10.1177/20319525231167983
- Making algorithmic management safe and healthy for workers: Addressing
psychosocial risks in new legal provisions-
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Authors: Aude Cefaliello, Phoebe V Moore, Robert Donoghue
Abstract: European Labour Law Journal, Ahead of Print.
The increasing deployment of algorithmic management in the workplace poses significant occupational safety and health risks for workers. In this article, we argue that existing and proposed EU regulatory frameworks are inadequate to address these risks, especially psychosocial risks, created or exacerbated by algorithmic management. While existing and proposed regulatory frameworks have significant implications for employers’ obligations to mitigate these risks, we identify several psychosocial risks created or exacerbated by algorithmic management and show how the current and proposed regulatory frameworks fall short of adequately addressing these risks. We observe that these frameworks, based largely in the ‘safety by design’ tradition, focus on the design phase of the technology life cycle. This focus does not adequately address risks that arise in the use or deployment stage of algorithmic management. There is therefore a need for a stand-alone piece of legislation at the EU level on algorithmic management. To address these shortcomings, we outline suggestions for provisions necessary for safe and healthy digitally managed work.
Citation: European Labour Law Journal
PubDate: 2023-04-24T05:02:31Z
DOI: 10.1177/20319525231167476
- Regulating algorithmic management: A blueprint
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Authors: Jeremias Adams-Prassl, Halefom Abraha, Aislinn Kelly-Lyth, Michael ‘Six’ Silberman, Sangh Rakshita
Abstract: European Labour Law Journal, Ahead of Print.
The promise—and perils—of algorithmic management are increasingly recognised in the literature. How should regulators respond to the automation of the full range of traditional employer functions, from hiring workers through to firing them' This article identifies two key regulatory gaps—an exacerbation of privacy harms and information asymmetries, and a loss of human agency—and sets out a series of policy options designed to address these novel harms. Redlines (prohibitions), purpose limitations, and individual as well as collective information rights are designed to protect against harmfully invasive data practices; provisions for human involvement ‘in the loop’ (banning fully automated terminations), ‘after the loop’ (a right to meaningful review), ‘before the loop’ (information and consultation rights) and ‘above the loop’ (impact assessments) aim to restore human agency in the deployment and governance of algorithmic management systems.
Citation: European Labour Law Journal
PubDate: 2023-04-21T05:40:45Z
DOI: 10.1177/20319525231167299
- Regulating algorithmic management
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Authors: Jeremias Adams-Prassl, Halefom Abraha, Aislinn Kelly-Lyth, Sangh Rakshita,
M Six Silberman
Abstract: European Labour Law Journal, Ahead of Print.
This special issue of the European Labour Law Journal, edited by Jeremias Adams-Prassl, Halefom Abraha, Aislinn Kelly-Lyth, Sangh Rakshita and M Six Silberman, explores the regulation of Algorithmic Management in the European Union and beyond. In our guest editorial, we set out the background to the project, introduce the reader to the key themes and highlights of the papers to follow, and acknowledge the support that the project has enjoyed.
Citation: European Labour Law Journal
PubDate: 2023-04-18T06:08:39Z
DOI: 10.1177/20319525231167298
- The employment status of the sportsperson: The Belgian case
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Authors: Frea De Keyzer
Abstract: European Labour Law Journal, Ahead of Print.
For many athletes, sport will always be seen as their greatest passion, but in addition, for some, sport has also become an economic activity, an activity through which one can earn income. Both professional athletes and (so-called) amateur athletes may conclude contracts with their clubs or federations, which also determine the (possible) variable and/or fixed remuneration they obtain in return for their performances. As sport can be seen as a form of employment, the key question to be asked is whether these contracts should be seen as employment contracts and, consequently, whether these athletes are all employees. This article wishes to contribute to the search for answers to this question. The research is limited to the Belgian legal system but has the ambition to feed a broader discussion. Starting from Belgian labour law, the article examines which conditions must be met in order to speak of an employment contract (labour, remuneration and authority). It can be concluded that many (paid) athletes, especially football players, will meet the legal conditions to be considered employees. This contribution focuses on team sports, with football as a typical example, because in this context exercise of authority is more obvious and discussions on the relationship with labour law are most acute. Furthermore, this article examines the specific legislation and jurisprudence concerning athletes. In the Belgian legal order, sports professionals constitute a separate category to which the legislator has given special status by adopting a lex specialis to the general Employment Contracts Act. Nevertheless, there are still discussions about the social protection these sports professionals enjoy compared to regular employees and non-professional athletes. Beyond that, the status of athletes who do not reach the remuneration threshold to fall within the scope of the Sports Professionals Act, remains unclear. Recently, a dichotomy was created within paid amateur football, showing a desire to keep some athletes out of the scope of labour law. However, labour law is mandatory in nature, so the question is whether this dichotomy can continue to exist. This article will make it clear that the relationship between labour law and sport remains a difficult one.
Citation: European Labour Law Journal
PubDate: 2023-04-17T06:38:46Z
DOI: 10.1177/20319525231165847
- Regulating algorithmic employment decisions through data protection law
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Authors: Halefom Abraha
Abstract: European Labour Law Journal, Ahead of Print.
The regulation of algorithmic management falls under the purview of multiple legal domains including but not limited to labour law, non-discrimination law and data protection law. While labour law does not have explicit provisions to adequately protect workers from algorithmic harms, existing non-discrimination and data protection laws can address some aspects of these harms. This article examines the extent to which the GDPR offers the necessary tools to protect workers from harm stemming from algorithmic management. It argues that while the provisions tailored to automated decision-making (ADM) and the rest of the GDPR provide workers with some limited protections, significant gaps remain. It then suggests some policy options on how the existing protections under the GDPR can be further complemented, particularised, and strengthened through a combination of legislative and non-legislative measures.
Citation: European Labour Law Journal
PubDate: 2023-04-03T06:23:41Z
DOI: 10.1177/20319525231167317
- Algorithmic discrimination at work
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Authors: Aislinn Kelly-Lyth
Abstract: European Labour Law Journal, Ahead of Print.
The potential for algorithms to discriminate is now well-documented, and algorithmic management tools are no exception. Scholars have been quick to point to gaps in the equality law framework, but existing European law is remarkably robust. Where gaps do exist, they largely predate algorithmic decision-making. Careful judicial reasoning can resolve what appear to be novel legal issues; and policymakers should seek to reinforce European equality law, rather than reform it. This article disentangles some of the knottiest questions on the application of the prohibition on direct and indirect discrimination to algorithmic management, from how the law should deal with arguments that algorithms are ‘more accurate’ or ‘less biased’ than human decision-makers, to the attribution of liability in the employment context. By identifying possible routes for judicial resolution, the article demonstrates the adaptable nature of existing legal obligations. The duty to make reasonable accommodations in the disability context is also examined, and options for combining top-level and individualised adjustments are explored. The article concludes by turning to enforceability. Algorithmic discrimination gives rise to a concerning paradox: on the one hand, automating previously human decision-making processes can render discriminatory criteria more traceable and outcomes more quantifiable. On the other hand, algorithmic decision-making processes are rarely transparent, and scholars consistently point to algorithmic opacity as the key barrier to litigation and enforcement action. Judicial and legislative routes to greater transparency are explored.
Citation: European Labour Law Journal
PubDate: 2023-04-03T06:23:22Z
DOI: 10.1177/20319525231167300
- There and gone again' Migration to and posting of third-country nationals
from Slovenia and Poland-
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Authors: Sonila Danaj, Mojca Vah Jevšnik, Marcin Kiełbasa, Monika Szaraniec
Abstract: European Labour Law Journal, Ahead of Print.
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.
Citation: European Labour Law Journal
PubDate: 2023-03-31T05:33:26Z
DOI: 10.1177/20319525231165851
- Shall or not shall be: That is the question
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Authors: Filip Dorssemont
Abstract: European Labour Law Journal, Ahead of Print.
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.
Citation: European Labour Law Journal
PubDate: 2023-03-30T03:52:48Z
DOI: 10.1177/20319525231163446
- 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
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