Answering questions

Question 1

Q on whether Erga Omnes extension principle can apply

Answer 1

First ask - is the country in question using the ergo omnes

Second - is the minister / representative USING the ergo omnes system (if so, how much)

Third - if the ergo omnes system (relating to membership) is NOT much in use, then examine the scope of the collective agreements

Question 2

Management right of the employer - management prerogative
- What are the boundaries of this prerogative and how are they defined

Answer 2

Managerial orders should
- remain within the limits of the law and the employment contract, and those contained in the collective agreement

► It also may be subject to the powers of the works council and should stay within the limits of the principles of reasonableness and fairness (bona fides)

Question 3

What is the applicable law, where for example a worker lives in Germany and works normally in France? Recall first what EU regulation covers this

Answer 3

Rome I Regulation (593/2008) - applies for all EU MS
1. In the absence of chosen law in: the law of the country from which the employee habitually carries out his work applies (i.e., France) unless another law system is more appropriate.

2. The parties have the right to choose the applicable law (Art 3), then the law of the chosen country applies (i.e., can choose German law instead)
3. BUT this cannot deprive the worker of the protection afforded to him by “provisions that cannot be derogated from by agreement” (Art. 8(1)) of the country whose law would apply if no law was chosen.
4. Nothing shall restrict the application of the “overriding mandatory provisions” of the law of the judge (Art 9)

Question 4

What is ‘social dumping’? Is it regulated in the EU?

Answer 4

employers’ practices to save on labour costs - either by exporting jobs from high wage countries to low wage countries OR by importing workers from low wage countries in high wage countries.

Regulation - EU regulated with the Posting of Workers Directive (Directive 96/71/EEC). Now after amendment in 2018, provides that posted workers are subject to all host country rules on:
- Renumeration
- Working conditions
- Accommodation conditions
- Allowances/expenses that apply to local workers